IACHR Decision Positions Workers’ Compensation as a Human Rights Issue

In the midst of a highly uncertain time for many immigrants across the country, undocumented workers have won an important victory in a landmark decision by the Inter-American Commission on Human Rights (IACHR).

The 31-page decision comes after a decade of proceedings before the IACHR based on a petition filed in 2006 by the American Civil Liberties Union, the National Employment Law Project, and the University of Pennsylvania Law School’s Transnational Legal Clinic, on behalf of two workers who were denied full workers’ compensation.

Leopoldo Zumaya was obliged to settle his workers’ compensation claim for a fraction of what he was owed, due to restrictive laws in his state.  Francisco Berumen-Lizalde received no compensation for his serious injuries, apparently as a result of retaliation by his employer.

After many years of waiting for Mr. Zumaya and Mr. Berumen-Lizalde, the IACHR published its decision in late December.  It states that the United States is responsible for violating the workers’ human rights by denying them equality before the law and access to justice and labor protections.

In addition to providing the workers with monetary compensation, the IACHR made several recommendations to the U.S. government, including the following:

  • ensure all federal and state laws and policies, on their face and in practice, prohibit any and all distinctions in employment and labor rights based on immigration status and work authorization, once a person commences work as an employee;
  • prohibit employer inquiries into the immigration status of a worker asserting his or her employment and labor rights in litigation or in administrative complaints;
  • ensure that undocumented workers are granted the same rights and remedies for violations of their rights in the workplace as documented workers;
  • establish a procedure whereby undocumented workers involved in workers’ compensation proceedings, or their representatives, may request the suspension of their deportations until the resolution of the proceedings and the workers have received the appropriate medical treatment ordered by the presiding courts; and
  • improve and enhance the detection of employers who violate labor rights and exploit undocumented workers and impose adequate sanctions against them.

Too often, employers are content to employ undocumented workers in positions of extreme vulnerability, denying them basic rights like workers’ compensation, overtime pay and the minimum wage, and protection from sexual harassment.  When workers complain, unscrupulous employers aggressively claim that the workers’ status makes them ineligible for legal remedies.

In the worst cases, employers seek to silence workers by threatening to report them to immigration officials, or to fire them.

Presently, laws protecting these workers vary across the country, thanks in part to the Supreme Court’s 2002 ruling in Hoffman Plastic Compounds v. NLRB, which held that undocumented workers could not recover back pay after they were fired for participating in protected union activities. Since then, some states have used the case as precedent to limit access to workers’ compensation and other rights for undocumented immigrant workers. Meanwhile, federal policies seeking to put an end to employer misuse of workers’ immigration status haven’t gone far enough.

Amidst a new wave of aggressive attacks against immigrants at the highest levels of government, the IACHR decision is an important affirmation that immigrant workers’ rights are human rights.

Everyone—regardless of their immigration status—deserves to feel safe at work, to earn a living wage, and to have protections like workers’ compensation when they are injured on the job.

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About the Author

Rebecca Smith

Director of Work Structures, National Employment Law Project

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