Injuries without Effective Recourse
Guestworkers toil in some of the most dangerous occupations in the United States.61 Fatality rates for the agriculture and forestry industries, both of which employ large numbers of guestworkers, are seven times the national average.62 Unfortunately, when H-2 workers suffer injuries on the job, all too often they are denied access to appropriate medical care and benefits. Those who are seriously injured face enormous, often insurmountable obstacles to obtaining workers’ compensation benefits.
In most instances, guestworkers are entitled to workers’ compensation benefits — on paper, at least.
The reality is that many injured guestworkers are not able to obtain the benefits to which they are entitled under this system. Only the H-2A program requires employers to provide workers’ compensation coverage throughout the United States. For H-2B workers, workers’ compensation coverage depends on the laws in the state where the worker is employed. Because workers’ compensation rules vary by state, some states are more accessible to transnational workers than others. And workers often lack the knowledge needed to negotiate the complex system in order to have benefits continue when they leave the United States.
There simply are no clear rules in the H-2 regulations guaranteeing that workers’ compensation benefits will continue after an injured worker returns to his home country. Indeed, the insurance carrier of one large company employing substantial numbers of guestworkers has a policy of affirmatively cutting off workers when they leave the United States, which they inevitably must do. This inhibits the workers’ ability to gain access to benefits and provides a financial incentive for employers to rely on guestworkers.63
Some states (for example, New Jersey) mandate that examining physicians be located in the state where an injury occurred. This means that injured workers have difficulty obtaining benefits while in other states and in their home countries. Some states require workers to appear in the state for hearings. And most states do not have clear rules permitting workers to participate by telephone in depositions and hearings before the workers’ compensation body. These rules put guestworkers at an enormous disadvantage in obtaining benefits to which they are entitled. As a practical matter, workers also have an extremely difficult time finding a lawyer willing to accept a case for a guestworker who will be required to return to his or her home country. In 2003, a group of civil rights and immigrant rights groups filed an amicus brief with the Inter-American Court of Human Rights relating to the treatment of immigrants in the United States. Among their many complaints: the discrimination against foreign-born workers in the state-by-state workers’ compensation scheme. That brief states:
“Workers’ compensation laws in many states bar the non-resident family members of workers killed on the job from receiving full benefits. In those states, whenever the family member is living outside the United States and is not a United States citizen, the family members do not receive the full death benefits award. There are several ways in which states limit compensation to nonresident alien beneficiaries. Some states limit compensation compared to the benefits a lawful resident would have received, generally 50% (Arkansas, Delaware, Florida, Georgia, Iowa, Kentucky, Pennsylvania, and South Carolina). Some states restrict the types of non-resident dependents who are eligible to receive benefits as beneficiaries (Arkansas, Delaware, Florida, Kentucky, Pennsylvania). Other states limit coverage based on: The length of time a migrant has been a citizen (Washington), or the cost of living in the alien resident beneficiary’s home country (Oregon). Alabama denies benefits to all foreign beneficiaries.”64 (internal citations omitted)
Such policies obviously disproportionately affect the families of guestworkers killed on the job.
Forestry Injuries Common
The forestry industry illustrates the problems many guestworkers face in gaining access to benefits. Getting injured on the job — either in the forest or in the van traveling to and from the forest — is a common occurrence for tree planters. They rarely receive any compensation for these injuries.
In their 2005 investigative series about guestworkers in the forestry industry, journalists from the Sacramento Bee wrote, “Guest forest workers are routinely subjected to conditions not tolerated elsewhere in the United States. ... They are gashed by chain saws, bruised by tumbling logs and rocks, verbally abused and forced to live in squalor.”65
Leonel Hernandez-Lopez of Guatemala was working as a tree planter in 2004 when he cut his right knee badly on the job. “I was very sick for 30 days, with six stitches on my wound,” he said. “I never received any help from the company, even having to pay for my own medicine from my own pocket. All the while I had to keep paying rent on the hotel room where I was staying, even though I made no money. … The only thing I received from the company was belittling, humiliation, mistreatment and bad pay.”
Mexican forestry worker Jose Luis Macias was spraying herbicides in 2005 and took a bad fall after stepping on a branch that snapped. “I fell backwards down about five meters and my leg ended up bent underneath me,” he said. “The supervisor told me, ‘Get up, get up,’ so that I would continue working. When he saw I did not want to get up, he said, ‘Don’t be a stupid wimp,’ so I had to keep spraying. My leg was swollen and I asked the crew leader to take me to the doctor. He told me … he didn’t have time to be taking me to the doctor. Finally I went to the doctor on my own. I have thousands of dollars in medical bills and I have never received any money for the time I lost from work. This was more than a year ago and my leg still swells, hurts and I almost can’t work.”
The pressure on workers to keep injuries to themselves is tremendous. Again, this is related to employers’ absolute control of the right of guestworkers to be present in, work in and return to the United States.
Workers who report injuries are sometimes asked to sign forms saying they are quitting. They are told that if they sign and go home, they may be allowed to come back the following year.
Injuries and workplace hazards are prevalent in other H-2B industries too. An investigation by Centro de los Derechos del Migrantes and American University Washington College of Law of the working conditions of female H-2B workers in Maryland’s crab processing plants found that “[w]ork-related injuries are common.” Virtually all of the workers interviewed reported having been cut while working; many reported having “injured themselves due to the sharp knives, crab claws, and the hurried pace of work.” Some employers discouraged the workers from properly treating their cuts, putting them at risk of contracting a potentially fatal infection caused by seaborne bacterium. In violation of federal Occupational Safety and Health Act requirements, most employers failed to provide workers with protective gloves. The vast majority of workers received no formal training by employers on safe crab-picking techniques.
While H-2B crab workers are entitled to workers’ compensation under Maryland state law, the investigation concluded that “most of these workers are not aware that they may be entitled to these claims, and even if they were, they lack the legal resources to pursue the claim, and fear retaliation by their employer.”66
Under the H-2 system, it is simply too easy for employers to cast aside injured workers with impunity.