Navigation Immigration and Workers’ Compensation
Cindy Speaker: Good afternoon, and welcome to our broadcast today. My name is Cindy Speaker, and I have with me attorney Bill Kovalcik of Michael J. O’Connor and Associates. Bill, thanks for being with us today.
Bill Kovalcik: You’re welcome. Always good to be here and talk about my favorite subject, Pennsylvania Workers’ Comp.
Cindy Speaker: Well, good. We look forward to that. Well, we’re going to talk a little bit about immigration today, and how that factors in to the workers’ compensation system in Pennsylvania. So initially, let me ask you, can you comment on how immigration has affected the workforce and work injuries?
Bill Kovalcik: Right. So, my initial response to that is to look overall at immigration in relation to work. The US Department of Labor does compile statistics on this, so I thought I’d look at the recent one. What I found was basically what I expected, is that number one, the unemployment rate for foreign-born workers in the United States is lower than it is for people who were born here. Now what that … In 2016, it was 4.3%.
Cindy Speaker: Well, that’s interesting.
Bill Kovalcik: It is. And what it tells me is something I already knew, I meet these people virtually every day, is that people often come here to work, and they work. They wouldn’t come here if they didn’t have work because it doesn’t help them. They didn’t have meaningful work in their country. So in 2016, there were 27 million foreign-born persons in the US labor force, and that’s 17% of the entire total. Of these people, Hispanics accounted for 48.3% of the foreign-born labor, Asians 25%, and the rest, various other ethnicities. So, almost half are Hispanics, and of course, this has been our experience as well, and certainly in the areas that we practice.
In the last 15 years or so, there has been a huge flood of immigration from outside the United States and from other cities in the United States of Hispanics to northeast PA, to eastern PA, Stroudsburg, Reading, Allentown, places like that. So, consequentially, we practice in those areas, and we then have clients who are from other countries, who don’t speak the language, who came here to work. So, you know, we’re on the front line of that experience. That is a national experience.
Cindy Speaker: Interesting. Well, let’s go forward with that. What challenges are involved with representing foreign-born workers?
Bill Kovalcik: Well, when I think about it, and I think about my experience, one of the things I’ve realized, and I was looking at my cases and over the history and how things have gone, sometimes we say it’s more difficult to represent someone who doesn’t speak your language. I’ll touch on that in a minute, but I was thinking about even in Pennsylvania how many people from different countries, and the overwhelming majority would be people who are of Hispanic origins, but I’ve had cases, you know, people from Mexico and Columbia, Guatemala, El Salvador, Dominican Republic. There are a lot of immigrants from there in this country, but also from Europe. I’ve represented people from Poland, from the Ukraine. In Africa, Somalia, Morocco. I’ve had a couple clients from Ireland. Vietnam, the Philippines, Thailand.
Cindy Speaker: That’s really interesting.
Bill Kovalcik: Yes, and some of these immigrants speak English, some do not. It’s always, and I remember when we had this Ukrainian case in State College, and it went on for a year. And I’ll talk more about that as an example. I’ve had several similar to that, but the first issue with every foreign-born client is the language barrier.
I have nobody in my office who speaks Russian. So it was hard to communicate with this guy. He would communicate in broken English. I learned enough to start representing him, but once we got into court, we had to have an interpreter. So, the case was going to be heard in Clearfield, not State College, but you have to, when you have a court proceeding, have an interpreter for people who don’t speak. For two reasons, to translate what they say and to whisper in their ear what’s being said by others. That’s the function of the translator in Workers’ Comp Court.
It took a while for them to find a Russian-speaking translator, but they found a professor at Penn State, and he was a Russian professor. He comes, and did three or four hearings where he translates. He took me aside at one point and said, “This is so much fun. Do you know how boring it is to teach Russian history all day? And I get to come to court,” and that [crosstalk 00:05:47] you involved a lot of intrigue and shady dealings, so it was kind of like a Law and Order episode.
Cindy Speaker: That’s great.
Bill Kovalcik: Yeah, I know. I’ll talk about that later. So, you get a client and the client doesn’t speak English, and of course the language barrier is the first thing you notice. But the other thing is, and you hope it’s not pervasive, but I know otherwise. There is, and maybe more so in this country now than ever, a fear of others who are different, who come from other places, subtle form of discrimination.
I think that often the people who don’t speak English, and who came here to work in a rough job, and they get hurt, they don’t have a lot of credibility sometimes, and I believe they’re not trusted as much as people who are American-born or whatever. So I think often, I feel like I’m fighting that. Like people will, and I have to stand up for these people, because even though they can’t express themselves as well as we can, they’re just as legitimate. They’re legitimacy doesn’t change because of the country of their birth.
But anyway, discrimination is pervasive, and I represent some brown and black people, I know that depending on the jurisdiction I might get scrutiny that I wouldn’t get just representing someone from Pennsylvania.
Cindy Speaker: And good for you for being such a strong advocate. I applaud that.
Bill Kovalcik: Over the years, we’ve had a lot of clients here who are from different countries and who speak different languages. We have a Hispanic woman who works for us, who is a translator for Spanish-speaking clients. So every time we have to speak to someone in person or on the phone, she’s there to translate. But we don’t have every other language available. I think I’ve only had one case, I had one case with a Somalian-born claimant. So, we get into a court proceeding and just to make it harder, because why not, my client lives in San Jose, California. He gets hurt in Pennsylvania, so he’s going to testify via telephone because we’re not going to make him come across the country. He testifies via telephone with a Somalian interpreter, and it took forever for the … the Bureau of Workers’ Comp, they arrange for these translators. So they have to find them and hire them and pay them. So, you know how hard it was for them to find somebody who speaks Somali?
Cindy Speaker: Oh, my goodness.
Bill Kovalcik: I don’t know where they found the guy.
Cindy Speaker: So they have their own language, Somalians?
Bill Kovalcik: Yeah. They have their own language. One of the challenges that’s presented is, this guy, and there are certified translators, who I know throughout the commonwealth and see them all the time. They’re professionals, they do this. But when there’s an unusual language, they get this guy, this Somalian guy, that looked like they just called and woke him up from a deep sleep, and I don’t know if he’s ever done this before.
There’s an art to translation. And in court, what’s so important is to literally translate what’s being said, because it’s all being taken down by the
Cindy Speaker: Yeah, I bet. Well, Bill, what about illegal immigrants? Are they granted protection under the Pennsylvania Workers’ Compensation Act?
Bill Kovalcik: Right. So, this is another area of the law that’s somewhat controversial. Whether or not you have documentation to be in this country, or whether you just came in undocumented, the law applies to you. And this happens a lot. There are a lot of people working in this country with no visa, or the visa has expired.
In my experience, there aren’t that many people who just walk over the border without any documentation. It happens, but often, they come here legally through a legal entry, and they overstay their visa, or they never had a visa, they had a passport, or whatever. But that’s the typical person, and sometimes they plan to work here and stay here. Then at one point, they become illegal.
So there are a lot of employers who are willing to hire them. Sometimes, and this is one of the tragedies, is that they get kind of abused. You know, the employer will say, “Well, hell, if you don’t like it, go back to Mexico.” Or you get hurt, and they just throw them in the trash heap, thinking they won’t come to a lawyer, that happens all the time. And that’s one of the things I like to do, when I see an employer who’s oppressive and who’s just grinding up these immigrants and throwing them away, if I can file something to make them hurt and get this guy money, I feel some satisfaction in that.
Cindy Speaker: Good for you. Yeah, absolutely.
Bill Kovalcik: Here’s an issue that comes up and it makes an illegal’s case more difficult. First of all, if a guy comes to me, we always ask him if they don’t speak English or are foreign-born or something, “Are you here legally?” And then they usually tell us yes or no truthfully, and if the answer is, “No, I am not,” that becomes a client confidence. So I cannot tell anybody that.
And certainly, I don’t want to in Workers’ Comp, and here’s why: while they are entitled to the protection of the Pennsylvania Workers’ Comp Act, if they meet the requirements otherwise, there is an exception. And the exception is this; once an illegal immigrant gets hurt, and that individual starts to treat, and say the doctor returns that individual to work with restrictions. He says, “You can do light duty.” Now, at that point, if the person was legal, the employer might say, “Okay, come back. We have a light duty job for you.” But if the person is illegal, as soon as their doctor says they’re capable of light duty, the case is over, because they’re illegal. They cannot be employed. So the law is, since they can’t accept light duty work, legally, their benefits end at that point.
Cindy Speaker: Oh, wow.
Bill Kovalcik: It comes up sometimes, but it doesn’t come up much, and here’s why it doesn’t come up. How do you prove somebody is not here legally? It’s really hard because what you have to do is to prove a negative. You, as the employer and insurance carrier, must prove that this individual does not have documentation. That’s virtually impossible without an admission from the immigrant.
Of course, I tell my clients that not only do you have the protection of the Pennsylvania Workers’ Comp Act, but you have the protection of the Pennsylvania and United States Constitution. So, being here without documentation is illegal. In a court proceeding or any other official proceeding, you do not have to admit that. You can claim your rights under the Fifth Amendment even though you’re not a citizen. And I do this all the time. So, when the employer wants to know if they’re legal, I object, and they claim their Fifth Amendment rights, and they never find out, and it is always sustained.
Cindy Speaker: That’s interesting. How about that? So you deal with those situations fairly often?
Bill Kovalcik: Yeah, just in the last couple years, I’ve had … and these defense attorneys, they always ask, “Are you here illegally?” “Objection!” And I won’t let it go any further, because that’s really going to hurt their case. So, if they can’t prove they’re here illegally, even if the individual has been released to light duty, they have to still keep paying them. I know that grinds their gears, but tough luck. I don’t know.
Anyway, so that’s the difference in law between legal and illegal. However, and sometimes I’ve found, and this often comes up, people who are not here legally get hurt, now all of a sudden, they’re thrust into the system. They’re in public, they’re being scrutinized, and they’re afraid that they show up at this official office of the Pennsylvania Workers’ Comp, and there’s going to be an immigration agent waiting there for them, and usually, that’s not the case. I think there are some vindictive employers who might drop a dime on some of these people, but here’s the thing that keeps them from doing it: an employer who employs illegal aliens is not going to come forth and say, “I know he’s illegal. He told me that when I hired him,” because that’s a crime in itself. They’re not going to admit that. They’re going to keep quiet about it because they’ve got 40 other people back at the plant doing the same thing.
Cindy Speaker: Yeah, that makes sense.
Bill Kovalcik: So, it never comes out.
Cindy Speaker: That makes sense.
Bill Kovalcik: Yeah, yeah. Over the years that I’ve been doing this, I’ve found one of the things that when I talk about immigrants being used, it’s under a certain structure and in a certain business, and that’s construction. And in construction, you’ll get a general contractor who gets a contract, and he might be American, he may not be, but he knows a guy, and the guy is a sub-contractor. So all the contractor wants to do, he’s not really going to do the work, he just wants to make a profit. He hires a sub-contractor to do the work.
The sub-contractor may be an immigrant, may be documented, may not be, but he knows some other guys. And these guys are generally all illegals. So they’ll work for cheap, and there doesn’t have to be any documentation, no taxes are paid, no payroll taxes, no income tax, and they’re not observing, generally, the laws of the business.
So, he gets together 20 illegal, these are called day workers, the guys that hang out around Home Depot, things like that. And maybe they all know each other, or they know this sub-contractor, and he’s getting $4000 to put a roof on, whatever, and he hires four guys to help him. Now one of those gets hurt, well, there’s no workers’ comp coverage. The sub-contractor doesn’t have any coverage. He’s flying by the seat of his pants anyway, so we’re going to look to the general contractor. Sometimes they have insurance, sometimes they don’t.
Cindy Speaker: Okay.
Bill Kovalcik: But you see this very often with illegal immigrants. They get into this contracting, sub-contracting, and “I’ll give you $120 a day to do this, no benefits included, no workers’ comp coverage.” So I’ve had a lot of these type cases. I see it over and over again. And it’s frustrating and it’s hard. You come to this country and you don’t get a legitimate job, and you get hurt, you’re in big trouble.
Another thing I want to touch on in a minute, the other party we bring into these cases is the Uninsured Guaranty Fund, which is a Pennsylvania fund that is made up of contributions assessed through insurance companies who write comp in PA. They never have enough money, though. And they never settle anything, because if every one of the defendants is uninsured, they’re on the hook, but they will delay it forever. I just settled one in Greensburg, and I asked the Uninsured Fund, “Will you contribute to this settlement?” Nope. Zero. So, when I see that, I see an illegal alien with employers who are shady, they have no coverage, I know it’s going to be a hard road for that individual.
Cindy Speaker: Yeah, wow. Interesting. Well, Bill, what about anything new in the law going on relative to workers’ compensation?
Bill Kovalcik: Yes, yes. I just talked about the Uninsured Guaranty Fund, and a Pennsylvania legislator told me that there is this brutal battle going on between the funding of the Uninsured Guaranty Fund. As I said, that fund, which covers uninsured workers is assessed against insurance companies, but it’s never assessed accurately, and they never have enough money. So the legislature has to step in, get money from the General Fund, and further fund them. They always, like legislators are, they want something for that funding, so, “Okay, we’ll agree to fund it, if … ” and they’re trying to make a deal on another bill.
That bill is what we call the Protz vs. Protz was the Supreme Court case that invalidated a portion of the Pennsylvania Workers’ Comp Act regarding payment rating evaluations. So there’s all this bargaining going on, and none of this has passed, and the bargaining includes, I’m told, that the new impairment rating system could go from 50% down to 30%. That’s one of the deals they’re making, which means, it would make it easier for injured workers to stay on comp beyond that 500 week period.
Cindy Speaker: Okay, right.
Bill Kovalcik: Right now, they’re trying to make deals up and down the aisles. I don’t know what’s going to come of it, but something’s going to have to happen soon.
Cindy Speaker: Bill, if anybody has questions about workers’ compensation, how can they reach you?
Bill Kovalcik: They can reach me at O’Connor and Associates. We have an 800 number, 1 (800) 518-4529, that’s 4LAW, and if you want a free consultation, you just tell the person who answers and give some information, and we’ll set you up with a lawyer, be it workers’ comp or some other area of the law, and we’ll be happy to speak to you.
Cindy Speaker: Excellent. Well, thanks for your time today.
Bill Kovalcik: Okay, great.
Cindy Speaker: Great information. Always interesting.
Bill Kovalcik: Thank you.
Cindy Speaker: Okay, and to those of you that are watching, if you have questions or comments, you can leave them on this page, we’ll get back to you. Thanks everybody, have a great day.
