I was 20 minutes late to my appointment this afternoon, interpreting between a Honduran guy with no documents who almost lost a fingertip at work a couple of months ago and an experienced Workers Comp lawyer maybe a decade away from retirement. In the building trades, if you’re not at least a half hour early, you’re late. Lucky I just work on the fringes of the trades, and in this case was working for free. The local worker center was foregoing any interpreting fee in the interest of helping people get compensation when they get hurt on the job, even if they don’t speak English, even if they’re working without documents. I’m on salary, paid by hardworking union members’ dues, so I have no excuse, but no one was
The lawyer thinks the system is fixed against workers generally, and increasingly so under Ohio’s rightward drift the last few years. I’m pretty sure he’s a Democrat, but he thinks Strickland was terrible for workers, that he didn’t do anything as the legislature took away protections. The Honduran, however, was going to be compensated, once a few obstacles were surmounted. The doctor’s records were late in appearing, for one. A functionary at BWC was going to cancel the case, but agreed to deny the claim instead, upon which the lawyer would appeal, and it would all go before a judge. That would have had to happen anyway, even if the doctor’s office had been on the stick, because the second obstacle was that the employer was denying that the worker was an employee — instead he was listed as an independent contractor. “It’s bullshit,” said the lawyer. “Six guys on a roof, and they’re all independent contractors? Bullshit.”
Not uncommon, however, especially when it comes to undocumented immigrants in the construction trades. Does the worker own his own tools or does a supervisor provide them? Does the worker decide when and where and how to do the work? If the answers are no, yes, no, no, and no, the worker is likely legally an employee, even if the employer is 1099ing him.
Know what else is common with undocumented immigrants? Lots of overtime hours with no overtime pay. This worker got on the job at 8 and worked till the boss said to quit, sometimes for 70 hours a week, at $13 an hour. The Mexican guy who got him the job would say that he had no right to overtime because he didn’t have any documents. Not true, under Ohio law. If someone works more than 40 hours in a week and they’re not in some exempt status like salaried workers, you owe that person time and a half for every hour above 40, whether they were born here or fooled you with a social security number they bought from some connected fellow immigrant. The federal Department of Labor or the Ohio Department of Commerce will take the case and not ask a single thing about immigration status. Otherwise we might find ourselves in a situation where employers routinely rob wages from their workers, and no one wants that.
The Mexican guy also told him that he wouldn’t get Worker’s Comp, it would be thrown out because he’s here illegally and doesn’t have any rights. Not true. His medical bills are now being paid through Worker’s Comp, and he’ll get some compensation for the time he’s been unable to work.
The other reason the Mexican guy said he’d lose his case was that the owner had better lawyers. The Worker’s Comp attorney laughed when I translated this. “He could hire Johnnie Cochran and F. Lee Bailey from the grave, and that wouldn’t change the fact that this guy’s an employee who got hurt on the job.”
Not too many people want a system in which employers cut corners on safety because they know they won’t be responsible when workers get hurt, either.