Posted by: Enrique Flores on Mar 9, 2020

I recently visited El Paso, Texas, located in the Desert Southwest. I also visited family in Ciudad Juarez, the Mexican border city across from El Paso. The cities are divided by the Rio Grande but are connected by physical bridges and a sense of community only found in sister cities on our border with Mexico. To those of us who grew up there or still call this borderland “home,” the constant movement of people through the border is not a sudden phenomenon, but just a daily occurrence that fuels the economy and deeply embedded resentments of those who dislike foreigners. People cross from Mexico everyday to shop, work, go to school or for a quick visit to relatives. Those who have their sights in going further north into the United States simply want a better life for their families. They are willing to work, and work harder than others. And, as workers’ compensation attorneys in this country know, immigrants are willing to work the dangerous jobs that few would consider a feasible way to a paycheck. Employers in the United States are aware of the immigrants’ work ethic and their much lower price tag, so they keep employing them. The current wave of anti-immigrant rhetoric sweeping the nation, and the fear it causes, is aimed at stopping immigration altogether.  However, it may have a serious side-effect: a spike in unreported work injuries.

Because I am a native Spanish-speaker and understand the Hispanic culture, I relate well to my immigrant and undocumented clients. Once I develop some rapport with them, usually by the end of the first hour, they tell me about a co-worker who injured his/her back/shoulder/leg some time before their injury but did not report it. Almost always, the person sitting across from me asks me if “suing” the employer will get him/her fired. I explain that under Indiana Law, it is illegal to fire injured workers simply because they are injured. What I discovered, especially in the last three years, is that injured workers wants to know if they can be deported or handed over to ICE if they report their injury. Three years ago, I told my clients with almost 100% confidence that I had never heard of employers or their insurance carriers calling ICE in retaliation for a work injury claim. That was three years and an election ago.

In the last few years, my confidence has been shaken. While President Obama deported many undocumented individuals, it was generally understood that those with criminal offenses were priority. My confidence in reassuring my clients of their safety after they bring a workers’ compensation claim continues to drop after recent events. The latest round of mass deportation ordered at the time of the inception of this article, and the stories of undocumented individuals arrested by ICE leaving state courts after attending to a non-criminal matter, give me pause. Worse still are the stories my clients have told me of ICE agents showing up at their apartment complex to arrest a fellow worker. Now I can only assure clients that I have yet to witness ICE agents showing up at Board hearings in Indiana. I also tell them that I have worked with most of the insurance adjusters and do not believe they would sink to such a low tactic to avoid paying on their claim. I have sat across from those prospective clients while they weigh the pros and cons of bringing a claim against their employer: “what if I just keep taking Tylenol for the pain? If I am laid off, or deported, who will take feed my children? Is it better to return to my country?”

I have a client who endured less-than-desirable working conditions for twelve years, only to be fired after she reported an injury to her shoulder. She did not immediately report the injury for fear of retaliation from management. According to her, employees who complained were disposed of. She feared that due to her immigration status, she would be fired or handed over to ICE without a second thought. She finally reported her injury when the pain became too much to bear. When I met with her, she explained that she presented false documents at the time of hire but that her employer never verified her status. The verification came a short time after her injury occurred. She lost her job after a round of “mass layoffs” that included her. She seemed somewhat relieved that she was only fired from her job and that her employer had not taken additional steps as a result of her immigration status.

The counterargument could be made that unreported injuries are a part of everyday employment. After all, individuals who are undocumented are not the only ones that worry about a paycheck to feed their family. And while that is true, undocumented individuals stand far more to lose than their job and a paycheck if they are deported.

The only hopeful message I can offer is that workers’ compensation attorneys in Indiana and throughout the country continue to fight the good fight, one claim at a time. I will carry on fighting for my clients but remain somewhat pessimistic about the immediate future. It is not for the work we do on the claims we have; it is for those that will not speak up to assert their rights.

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