Injured Undocumented Workers and Their Workplace Rights: Advocating for a Retaliation per Se Rule

Article excerpt

Undocumented workers typically work in some of the lowest-paying and most dangerous jobs in the country. Although they experience abnormally high workplace injury rates, undocumented employees injured on the job rarely enforce their workplace rights due to fear of employer retaliation and possible deportation. The Supreme Court's decision in Hoffman Plastic Compounds made the situation for injured undocumented workers even worse by creating a legal basis for employers to demand discovery of a complainant-worker's immigration status, leading to a grave chilling effect on undocumented workers' willingness to enforce their workplace rights. This Note argues that current tools used to protect undocumented workers from such intrusive discovery demands - such as protective orders and invocation of the Fifth Amendment - do not sufficiently deter employers from retaliating against their injured workers. This Note thus calls for greater use of retaliation claims under both federal and state laws and, more specifically, the development of a retaliation per se rule, which would make inquiry into a worker's immigration status at any point after injury a per se violation of the anti-retaliation provisions in federal labor laws.

I. Introduction

Undocumented workers in the United States have become an increasingly hot topic of discussion and debate. This debate is due in part to the recent economic recession1 and the significant increase in the undocumented population in the United States in the last dozen years,2 which have in turn sparked the passage of anti-immigrant bills and laws in various states across the country,3 most notably S. B. 1070 in Arizona.4 There are about eight million undocumented workers in the United States, most of whom work in the construction, agriculture, manufacturing, and food preparation industries.5 Undocumented workers are mostly low-wage workers employed in the lowest-paying jobs in the country;6 about four million undocumented workers are low-wage workers making less than twice the minimum wage.7

Due to their undocumented status and their economic desperation,8 these immigrants work in some of the most dangerous jobs in the country.9 For example, a 1996 survey conducted by the U.S. Department of Labor ("DOL") determined that nearly half of the garment-manufacturing businesses in New York City - businesses that employ high numbers of undocumented immigrants - could be characterized as sweatshops.10 An increasing number of undocumented workers are also employed in the construction industry,11 one of the most dangerous industries in the country and the industry with the highest fatal injury rate of any industry in the private sector.12 Finally, low-wage undocumented workers are increasingly working in the meatpacking industry,13 an industry in which approximately twenty-five percent of employees report suffering from work-related illness or injury - although the actual rate is likely even higher when one accounts for the industry's systematic underreporting of health and safety violations.14

These dangerous working conditions translate into high rates of workplace injury and death. To truly grasp the urgency of the situation, it is helpful to look at some of the injury and death rates for low-income Latino workers; looking at this demographies injury and fatality rates underscores how perilous working conditions are for undocumented workers in general (most of whom are Latino).15 While the overall number of workplace fatalities dropped between 1992 and 2002, the number of fatalities for foreign-born workers increased by forty-six percent and the number of workplace fatalities among Latinos specifically increased by an astonishing fifty-eight percent.16 In the construction industry alone Latino workers in 2000 "were nearly twice as likely to be killed by occupational injuries" than their non-Latino counterparts.17 This trend continues: a 2007 survey conducted by the U.S. Bureau of Labor Statistics determined that there had been a seventy-six percent increase in the number of Latino worker deaths since 1992, even though the total number of workplace fatalities during this period declined. …