In 2004, Leopoldo Zumaya, an undocumented farmworker, was working as an apple picker in Pennsylvania when he fell and severely injured his leg, causing permanent nerve injury. His employer reported his immigration status, but instead of receiving workers’ compensation benefits, the insurance company refused to pay out the benefits to which Mr. Zumaya should have been legally entitled. Although Mr. Zumaya hired a lawyer, he was forced to accept a small settlement due to his immigration status. A year later, Francisco Berumen Lizalde, an undocumented worker, seriously injured his hand after he fell off a scaffold during a painting job. After filing for workers’ compensation, Mr. Lizalde was arrested for visa fraud and later deported. Mr. Lizalde was unable to continue with his claim. It appears his deportation was a result of retaliatory actions after he filed for workers’ compensation.
In 2006, the American Civil Liberties Union (ACLU), the National Employment Law Project, and the University of Pennsylvania Law School’s Transnational Legal Clinic filed a petition with the Inter-American Commission on Human Rights (IACHR) to “find the United States in violation of its universal human rights obligations by failing to protect millions of undocumented workers from exploitation and discrimination in the workplace.” The situation of undocumented workers is also at issue under the United States’ obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the United States ratified in 1994. In its Shadow Report on the United States’ compliance with ICERD, the ACLU documented the discriminatory treatment of undocumented migrant workers.
The challenges undocumented workers face when seeking to receive proper compensation and healthcare when injured at work is well-documented. Like Mr. Lizalde, injured workers fear deportation upon filing worker’s compensation claims. State laws provide limited labor protections, if any at all. The petition includes as a relevant factor of concern, the Supreme Court’s decision in Hoffman Plastic Compounds v. NLRB in 2002, which held that an illegally fired undocumented worker could not recover back wages.
On November 20, 2016, ten years after receiving the claim, the IACHR published its decision on this case. In a landmark result, the IACHR found the United States responsible for violating the workers’ human rights. In its decision, the IACHR described the Hoffman case and included it due to its relevance for the issue at hand. The IACHR based its legal analysis on provisions of the American Declaration: right to equality before the law (Article II); rights to juridical personality and to enjoy basic civil rights (Article XVII), and to a fair trial (Article XVIII); and right to social security. The IACHR noted that, based on international law and the inter-American system, a worker who enters into an employment relationship is entitled to the same rights as all other workers, regardless of the worker’s migratory situation. The IACHR found that the United States denied equal access to remedies and that workers were unable to recover under the worker’s compensation programs. In the case of Mr. Lizalde, the IACHR found the United States responsible for violations under Articles XVII and XVIII of the American Convention. Further, the IACHR agreed with the Concluding Observations of the U.N. Committee on the Elimination of Racial Discrimination (CERD) on the United States, which noted that Hoffman erodes “the ability of workers belonging to a racial, ethnic and national minorities to obtain legal protection and redress in cases of discriminatory treatment at the workplace.”
The IACHR noted the United States’ obligation to provide remedies for its workers. Under the North American Agreement of Labor Cooperation (NAALC), the United States, as a signatory state, agreed to promote labor principles that apply to all workers, including non-citizens. Included in those NAALC principles is compensation in cases of occupational injuries. Finally, the IACHR determined that the United States, as a member of the International Labour Organization (ILO), must eliminate discrimination in in the payment of benefits to workers. The ILO has clarified that all international labor standards should cover migrant workers irrespective of their immigration status.
The IACHR made several recommendations to address the violations, including provisions for adequate monetary compensation to remedy the violations. As undocumented workers face challenges and threats while reporting abuse and work-related injuries, the IACHR’s decision provides a “blueprint that [has] the potential to impact the lives of millions of undocumented workers.”