View this article online: https://www.insurancejournal.com/news/southeast/2011/08/11/210548.htm
Florida employers may be under more pressure to document the status of their workers after a panel of state judges ruled that illegal residents who are injured on the job are eligible for workers’ compensation benefits.
The Florida First District Court of Appeals recently ruled in the case of HDV Construction Systems Inc. v. Luis Aragon, that he was eligible for workers’ compensation benefits despite the fact that he was an undocumented worker.
In 2007, Aragon fell 30 feet off a roof causing serious injuries to his foot and arm. The employer’s insurance company paid his medical bills and a workers’ compensation judge awarded him permanent and total wage benefits, despite his illegal status. The insurer asserted Aragon should not be eligible for wage benefits based on his illegal status and the fact he could find other less demanding work.
However, the judge found that the combination of Aragon’s physical injuries, illegal status, and inability to communicate fluently in English, effectively rendered him unemployable. As a result, he awarded Aragon wage benefits. The employer and insurer then appealed the case.
The First District Court ruled the workers’ compensation judge was correct in awarding Aragon wage benefits, saying it was the expressed legislative intent of the state’s workers’ compensation law that even illegal and unlawfully employed workers should be eligible for benefits.
“The Florida Legislature has long recognized that although the employment of illegal aliens is prohibited by federal and state law, violation of these laws is an unfortunate reality,” opined the court. “The cost of injuries sustained by unlawful workers, being no less real that those suffered by lawful workers, should be borne by the industry giving rise to the risk, not the general taxpaying public.”
Further, the court ruled that the construction company knew or should have known that Aragon was an undocumented worker. To rule otherwise would allow employers to hire undocumented workers and then use their status to avoid paying benefits.
“An entity that knowingly employs unlawful labor should not be able to shirk the cost of the injuries it creates, ultimately placing it in an unfairly superior financial position to those employers who operate lawfully,” opined the court.
Aragon’s case provides a window into Florida’s labor force that includes tens of thousands illegal workers, especially in the construction industry. Even without a driver’s license, social security number or a “green card,” he was able to find work starting in Georgia at the age of 16 and eventually Florida. At the time he was injured, he was working as a carpenter after being hired by a man known only as “Jorge” who paid him in cash.
Some lawmakers have taken issue with the ruling but place the blame on the employer more than the employee. Florida law currently makes it a misdemeanor to hire an illegal resident but it is virtually unenforceable due to the size of the labor force. The law also states that employers are not in violation of the law unless they “knowingly” hired the illegal worker.
“With the lure of cheap labor, we’ve created a black market of humans,” said state Rep. Ritch Workman (R-Melbourne), adding that employers, not insurance companies, should be on the hook for paying benefits. “I don’t care if that puts the employer out of business,” he said.
In the 2011 legislative session, state Rep. Bill Snyder (R-Stuart) introduced a bill that would have required the use of the federal E-Verify program to check an employee’s residence status. It was a vain attempt; however, since both business groups and immigration-rights groups opposed the legislation.
“The current law is extremely unwieldy and difficult to prove now,” he said. “Without E-Verify, we’re dead in the water.”