Keefe, Campbell & Associates, LLC

Editor’s comment: Don’t expect immigration reform to start in the Courts, folks. We have been looking at the forces against immigration reform trying to stage protests and generate as much press as they possibly can to block reform—it was kind of funny to see 12 people show up at an Arizona Diamondbacks v. Chicago Cubs game to prove their angst and outrage against the state of Arizona. We continue to feel most Americans quietly want immigration reform and understand protests are part of the fight.

As almost everyone in Illinois is a child of an immigrant, we want to point out the main issue may truly be controlling overpopulation in countries such as Latin America, Eastern Europe and China.

Population statistics for Latin America and the Caribbean indicate population was at 167M in 1950 and was at 577M in 2008. You may note that is almost a four-fold increase. It is projected to almost double again by 2100 to 912.

Northern American had population of 172M in 1950 and was at 337 in 2008. It is expected to grow to 398M by 2100.

Asia is at about 4B right now and will grow to 5.5B by the end of the century. If you wonder where global warming is coming from stop worrying about carbon, look to the expanses of Asia that are getting more crowded every day. We can have the thriftiest and most carbon-saving folks in the world but if there are gazillions of them, what difference will it make?

We truly feel the squalor and desperation of overpopulation is going to continue to cause anyone with resources to try to get into the U.S. Please understand it is may be impossible to stem a tide of folks from Asia, Eastern Europe and Latin America. If we don’t take aggressive steps, try to imagine three or four Americans for every one currently in the U.S. Try to also remember you can’t take a bath and get clean if there are ten people in your bathtub—if we don’t control our population, we are going to run out of clean air and water and other resources. We simply can’t afford an “open door” policy on immigration.

Going back to legal news, in Bollinger Shipyards, Inc v. Director, Office of Worker’s Compensation Programs, U.S. Dep’t of Labor, the Fifth Circuit upheld an award of workers compensation benefits to an illegal alien who was injured on the job as a pipefitter. The Fifth Circuit, based in New Orleans, joined the D.C. Circuit in holding immigration status is irrelevant under the LHWCA.

The Court noted the employee told Bollinger he was a citizen and gave the company a fake social security number. After he was injured on the job, the company paid some of his expenses and benefits but then stopped when it discovered he was an undocumented immigrant. The primary question on appeal was whether an undocumented worker could be eligible for benefits under the LHWCA. Analyzing the statute and cases from other statutes, the Federal court held the worker here was an employee within the meaning of the Act and entitled to benefits. Bollinger argued because the worker was not legally entitled to work, he could not be entitled to benefits.

Here’s how the court characterized the company’s brief:

Bollinger contends that undocumented immigrants such as Rodriguez are per se ineligible to receive indemnity benefits under the LHWCA, as any such benefits “would be based on illegally obtained wages.” Bollinger reasons that Rodriguez’s injury caused him no loss of wage-earning capacity because he had no legal wage-earning capacity at the time he was injured. Bollinger histrionically compares the BRB’s ruling to “awarding benefits to a drug dealer based on ill-gotten ‘wages,’ [and] then telling the employer that it better find another illegal enterprise for the drug dealer, lest there be found a permanent loss of wage[-]earning capacity.” In the same melodramatic style, Bollinger compares awarding benefits to Rodriguez to “awarding benefits to a pirate or a Mafioso.”

Bollinger relied on the Hoffman Plastics line of NLRB cases, which made this distinction about whether wages could be paid legally in declining to award some types of relief under the NLRA in order to avoid conflict with the immigration laws, which prohibit the employment of aliens who enter or remain in the country illegally and which also criminalizes the use of false documentation to obtain work.

The court distinguished this line of cases for three reasons:

(1) Unlike discretionary backpay under the NLRA, workers’ compensation under the LHWCA is a non-discretionary, statutory remedy;

(2) Unlike the NLRA, the LHWCA is a substitute for tort law, abrogating fault of either the employer or the employee; and

(3) Awarding death or disability benefits post hoc to an undocumented immigrant under the LHWCA does not “unduly trench upon” the IRCA, as Congress chose to include a provision in the LHWCA expressly authorizing the award of benefits “in the same amount” to nonresident aliens.

The Federal court left open the possibility that an alien who was about to be deported or was sure to be deported might not be eligible for future lost wage benefits calculated as they would be earned in the U.S. We appreciate your thoughts and comments.

Editor’s comment: Back in July we wrote an article on Economy Packaging, the recent case where a unanimous Illinois Appellate Court ruled someone who was employed illegally and injured could obtain lifetime total and permanent disability benefits because they couldn’t locate suitable replacement work. Last week we provided an update on that case in regard to a recent Nebraska state law. We had a lot of comments and responses to both articles, and have had some time to reflect on the nature of our immigration system as it relates to workers compensation in general. We take this opportunity to editorialize.

While we continue to believe the court’s ruling in Economy Packaging was something of a travesty, we would like to take a moment and analyze some of the reasoning behind why. Lets face it, in today’s America, just like in our parents’ and our grandparents’ generations, there has been a massive amount of immigration to our great nation. Why? America, leaving aside its partisan political nature, is still the land of opportunity. It is still one of the only places in the world where you can begin anew with only the clothes on your back and make your own way. And there are numerous success stories of immigrant families doing just that.

What is different about today’s America is that the immigration system has become a gigantic federal bureaucracy that moves at a snail’s pace and really cannot process the applications it receives. The system is still paper driven and anecdotal evidence of files misplaced for months at a time if not years are commonplace. Also, evidence indicates it is far easier to move through the system when one is already within the borders of the US than from without. This, among a vast amount of other things, leads to what we colloquially call “illegal immigration.”

We recently saw an article and study on the web about low wage workers. A 2008 study of 4,387 workers in low wage jobs in Chicago, Los Angeles and New York is titled Broken Laws, Unprotected Workers. The academic study revealed widespread violations of basic wage and labor laws. These violations affected all workers, regardless of legal status, race, or gender. The study found numerous violations of minimum wage and overtime laws; workers who log hours without being paid for their time; workers who are denied earned breaks and meal time; charges illegally deducted from worker pay; retaliation by employers for complaints; and denial of workers’ compensation benefits, including encouraging employees to commit fraud.

Stating state workers’ comp systems are not functioning in the low-wage labor market, the report’s executive summary noted of the workers in the sample who experienced a serious injury on the job, only 8 percent filed a workers’ compensation claim. When workers told their employer about the injury, 50 percent experienced an employer reaction including firing the worker, calling immigration authorities or instructing the worker not to file for workers’ compensation. About half of workers injured on the job had to pay their bills out-of-pocket or use their health insurance to cover the expenses. Workers’ compensation insurance paid medical expenses for only 6 percent of the injured workers in their sample.

The report recommends three principles that should drive the development of a new policy agenda to protect the rights of all workers:

• Strengthen government enforcement of employment and labor laws
• Update legal standards for the 21st century labor market
• Establish equal status for immigrants in the workplace

Let us take a step back from that, what does it mean to be illegal or undocumented? Were our forefathers who set foot on this shore illegal? Our states bind together in union, but suppose they did not, would it be illegal for an Illinoisan to travel to Michigan? Essentially it is government sanction that allows legality. But why do we need government sanction? We here at KCA are all for background checking for criminal activity, and for communicable disease screenings, but the driving wedge in politics is jobs. Often you hear cries of illegals stealing American jobs. Here we come to the crux of the issue in relation to workers’ compensation.

We as a society need to redefine how we look at the issue. Illegal aliens or undocumented workers are people. Almost all undocumented workers are “workers”–they are people who want to work. They wouldn’t be working if they didn’t want to, and in fact, many of them wouldn’t come to America if there weren’t jobs available here for them. What does that mean in the bigger picture? It means that in almost all respects, there are employers out there who are looking for help, and there are people willing to work for them. In the vast majority of cases, if there were no legal consequences, and even in some cases with the consequences, employers would not care if the employee was “illegal” or not – if they can do the job and they are a good employee, that is all they are looking for. These people are not stealing jobs, they are doing the jobs that employers cannot get citizens to perform. Is it any wonder when today’s unemployment benefits often pay more than some of these positions do?

From that standpoint, we move into the arena of workers’ compensation. We agree that illegal or undocumented workers should be generally entitled to the protections of the Act, to an extent. If you lose a finger, you lose a finger. And the rapid receipt of certain benefits in exchange for doing away with tort liability is something that everyone can agree is a worthwhile compromise. What the court did in Economy Packaging may have changed the game however. By ordering the employer to pay total and permanent benefits to a person who could easily have obtained work but for their “illegal” status, is not what the system or its originators intended. If these individuals could obtain a job, it would be a moot issue and vocational counseling would have been used as it is in many other every day cases. But until Federal law allows this, the states should not be able to penalize an employer simply because they can’t legally re-employ an injured worker and have to comply with federal law.

The situation gets even more complex when you look at where it is going in the long run. We are creating more and more incentive to eliminate illegal aliens in the workforce. Agree or disagree with the concept, but at present we have jobs out there that are being performed by these hard working folks, and if we continue to crack down on employers, there won’t be anyone to work for them, which means they go out of business, which means fewer and fewer jobs, which means more and more unemployment, and a smaller economy, and so on, ad infinitum. What is the real fix? We need to overhaul the Federal immigration system and make it easier for respectable, hard working individuals to get their visas. Its almost “criminal” to make someone a criminal for wanting to work.

The link for the report we cite is http://nelp.3cdn.net/59719b5a36109ab7d8_5xm6bc9ap.pdf. If you have thoughts and comments, please send a reply or post them later today on the blog at www.keefe-law.com/blog.

Editor’s comment: About four months ago, the Governor of Nebraska signed a sweeping new bill that prohibits illegal immigrants from receiving state and local benefits by requiring state and local governments to verify that any person applying for benefits is in the United States legally and therefore eligible to make the claim for such benefits. The bill becomes effective at the beginning of October 2009.

The basic reasoning behind this bill is to ensure taxpayers’ money is not spent on services or benefits for people who are not in the state legally. The bill outlines a process agencies must use to verify eligibility. Those applying for public benefits must first attest they are either a citizen or an alien able to work in the U.S. As we go to press, we are not sure whether this will require anyone making a workers’ compensation claim to also demonstrate eligibility to work as part of the claim for WC benefits.

Government entities are to verify the immigration status of aliens using the U.S. Department of Homeland Security’s (DHS) Systematic Alien Verification for Entitlements (SAVE) program. The web-based program allows government entities to verify whether an individual is in the U.S. lawfully. In addition, public entities, contractors for public projects, and businesses qualifying for state tax incentive programs will also be required to verify legal status of newly-hired employees using the federal E-Verify system, which is made available to employers by DHS. No fees are charged for accessing the E-Verify database.

As we have advised on numerous occasions in the past, one of the underlying precepts of all workers’ compensation benefits is a legally binding contract between employer-employee. In 2002, the United States Supreme Court ruled in Hoffman Plastics Compounds, Inc. v. National Labor Relations Board that Federal immigration policy, as expressed by Congress in IRCA, foreclosed the Board from awarding back pay to an undocumented alien who has never been legally authorized to work in the United States. The ruling still stands and we feel it clearly outlines it is illegal to hire an undocumented alien in the United States. There is no higher authority on this issue than our Supreme Court.

However, in Illinois, the ruling by the Appellate Court, Workers’ Compensation Division in Economy Packing Co. vs. Illinois Workers’ Compensation Commission found an undocumented Mexican national who slipped and injured herself in May 2002 working on an assembly line was entitled to apply for and receive Illinois workers’ compensation benefits. The arbitrator awarded her temporary total disability benefits of $147 per week for 60 weeks and permanent total disability benefits of $371 per week for life. The arbitrator also ruled Ms. Navarro to be an “odd-lot” worker, meaning she was permanently and totally disabled and her limited skills would prevent her from finding future work. The defense pointed out it was illegal for her to seek future work in the United States.

The Illinois Workers’ Compensation Commission and a trial court agreed and Respondent Economy Packing appealed. The employer argued that “undocumented aliens” are always unemployable because of U.S. immigration law regardless of their physical capabilities. In order to receive permanent and total disability benefits under Illinois’ unusual and court-created “odd-lot” theory, claimant therefore needed to prove she was not employable due to age, training, education or experience, the employer argued.

The Illinois Appellate Court disagreed and found that although immigration law prevented this undocumented alien from legally working in the United States, she would still be able to work “elsewhere” had she not sustained an injury on the job. This created the need for the hapless Illinois employer to locate work outside the United States! The Court further found an Illinois employer has the burden of producing “sufficient evidence that suitable jobs would be regularly and continuously available to the undocumented alien but for her legal inability to obtain employment.”

As we pointed out at the time of the Economy Packing ruling, the Court did not address the basic legal tenet requiring a valid employment contract as a prerequisite for workers’ compensation benefits. We feel the members of the Court simply wanted Illinois employers to understand there is potentially a very heavy penalty when hiring undocumented workers. In the alternative, the Court wanted to reward claimant lawyers who enroll undocumented workers as clients.

Either way, we are certain the members of the Court are not going to change their ruling in Economy Packing any time soon. We further feel legislation such as that recently enacted in Nebraska will be the only way to “overturn” the Economy Packing theory. We would appreciate your thoughts and comments.

Editor’s comment: Immigration is a tough issue to tackle, with a lot of nuance and involving a lot of different facets. Beginning with President Bush, and continued by President Obama, this is one “stream-lining” regulation we can get on board with. Whether you agree with it or not, the law of the land requires employers not employ illegal immigrants. Where previously employers were required to have their employees fill out I-9 information forms to have on hand should DHS or USCIS wish to review them,  this process was time consuming, filled with inaccuracies, and allowed a lot of illegal or undocumented aliens to remain employed when the Feds didn’t check their forms. The internet age is making it that much easier to confirm the status of the potential employees, in a concurrent time frame.

From the U.S. Citizenship and Immigration Services’ website: “E-Verify is an Internet-based system operated by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) that allows employers to verify the employment eligibility of their employees, regardless of citizenship.  Based on the information provided by the employee on his or her Form I-9, E-Verify checks this information electronically against records contained in DHS and Social Security Administration (SSA) databases.”

On June 6, 2008, President Bush issued Executive Order 13465 which required any contractor entering into a contract with the federal government to agree to the use of an electronic employment eligibility verification system to verify the employment of all persons hired during the contract term who were to perform work in the US, and all persons hired to perform work on the federal contract in question.  Since enactment, various decisions have pushed back the initial date of effect at September 8, 2009.

The Society for Human Resource Management (SHRM) and the other plaintiffs including the Chamber of Commerce of the United States of America challenged the legality of the executive orders and their implementing regulations arguing it was neither legally justified nor practical for federal contractors to implement. In a ruling last week, a federal district court held in favor of the government and ruled the regulation should go forward.

What does this mean? In eight short days, from September 8, 2009 onward, anyone doing business with the federal government and accepting government contracts will have to E-verify the employment status of their employees. Although this will amount to greater cost expenditures for those businesses entering into contracts with the federal government, it does not appear to be a significant one, and it is difficult to fault the government for attempting to streamline a process that will actually make it easier for businesses to comply with the law. Furthermore, we’d like to point out that it isn’t exactly a secret that federal contracts come with strings attached, taking a government contract was never compulsory, and the new string here is that if you want the lucrative government contract, you have to allow them a little more access to your records.

Where it may become an issue, as in any system that grows too large, errors have already been appearing in the E-verify database. In use in other areas of federal law for many years, as of last year, there were nearly 100,000 employers already using the E-verify database verification system. The new rules going into effect next week are estimated to increase the volume of users by another 100,000-150,000 users. As the users grow, and data grow, it may more prevalent to get false reports or inaccurate results from the E-verify database. That remains to be seen, however, and one can always hope the federal government will become efficient in at least one more area.

USCIS has published information and frequently asked questions on its website regarding application of the rule. This article was drafted by Arik D. Hetue, J.D. who is soon to be an attorney with Keefe, Campbell & Associates. Please reply with your thoughts and comments.

Editor’s comment: We were recently asked by a reader about the unusual ruling in Economy Packaging where a unanimous Illinois Appellate Court ruled someone who was employed illegally and injured could obtain lifetime total and permanent disability benefits because they couldn’t locate suitable replacement work. Prior to Economy Packaging, there was a ruling from an Illinois arbitrator where he would not order vocational rehabilitation because to re-hire such an individual is against U.S. law.

After Economy Packaging, no one knows what to do with an illegal or undocumented alien who is injured and can’t return to the same job in part because of disability and in full because it is illegal to again hire such an individual. We cannot imagine a lot of Illinois arbitrators would allow an illegal alien to sit home with a sore thumb and turn them into a total and permanent disability or wage loss claim because they were laid off following their injury and couldn’t find work due to illegal status.

But one never knows. If the man or woman had a serious injury and the problem finding work was real, most arbitrators aren’t going to reward an employer who hired the illegal alien and then had them get seriously injured. Please also note we had a claim where a worker got seriously hurt in Illinois while making about $15 per hour. He returned to his own country and was making about $10 a week. That isn’t a solid outcome for an Illinois employer either. The Illinois Workers’ Compensation Act doesn’t address such a potential—we assure all of our readers it should but good luck getting something written into the statute that might benefit Illinois employers and also make sense.

The Economy Packaging message is clear to Illinois employers and insurers—if you hire illegal or undocumented aliens you do so at an enormous WC risk. We can foresee employers putting up signs and printing on employment applications their willingness to sue anyone who lied about their eligibility for employment to later find out they were illegal and had to pay monster WC benefits due to the illegal status. We would ask all of you if such an employment application would or could comprise WC fraud.

If we ran an insurance carrier and had any first-dollar exposure for paying such benefits, we would write the policy to confirm we did not provide workers’ compensation coverage for employees of an account if they were illegal or undocumented aliens. The added cost and exposure would and should cause premiums to spiral. We caution we don’t know how the Illinois Department of Insurance would view such a policy.

All the effects of Economy Packaging ruling are insidious and difficult to predict. If you get a similar claim and we can assist, send an email with as much detail as possible and we will provide our opinion(s). We don’t charge for such work.

On another note, the world of human resources and employee benefits is buzzing as the Department of Homeland Security’s Immigration Customs and Enforcement (ICE) agency announced yesterday it was “launching a bold, new audit initiative” aimed at U.S. employers. Beginning July 1, 2009, ICE sent notices to 652 businesses notifying the companies ICE intended to conduct an audit on their hiring records, e.g. Form I-9s and accompanying documentation to ascertain whether they complied with federal immigration laws.

In announcing the move, ICE director John Morton commented “ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE’s long-term strategy to address and deter illegal employment.” To illustrate its new commitment to workplace enforcement measures, ICE noted in its press release in all of 2008, the agency issued 503 similar notices to companies. The U.S. government’s efforts and proclamations continue to make it unambiguously evident the battle against illegal immigration in the U.S. is now being primarily fought against employers and illegal hiring practices. Undoubtedly, ICE enjoys the press garnered by these large-scale enforcement actions. Nevertheless, funding for ICE’s enforcement activities against employers has increased substantially recently and this new I-9 audit is a clear example of ICE’s new strategy of focusing on companies’ hiring practices and penalizing employers for failing to comply fully with immigration laws. Employers who have not done so yet should consider having an audit conducted on their hiring practices to ensure compliance with federal immigration laws.

The notice from ICE is online at http://www.ice.gov/pi/nr/0907/090701washington.htm. Please do not hesitate to send your thoughts and comments.

Editor’s comment: We don’t know your personal political spin on illegal aliens as it relates to workers’ comp benefits but we want all veteran risk managers to understand some very simple thoughts on the topic.

The math on Illegal aliens isn’t hard to follow. Plaintiff trial lawyers make money on fees. If they are retained by clients who are illegal aliens and their illegal aliens don’t get benefits, Plaintiff trial lawyers don’t get fees.

There is a persistent rumor the current Illinois Commission and reviewing courts are friendly to Illinois’ Plaintiff trial lawyers. There is also a rumor the Commission and reviewing courts aren’t quite as friendly to Illinois business.

So no matter how you spin it, illegal aliens will get WC benefits, regardless of how “illegal” that might be under federal law. No one expects the federal courts; particularly the rare air of the U.S. Supreme Court will give a hoot. It is our reasoned legal opinion the U.S. Supreme Court will not consider taking an appeal of a measly state WC claim to confirm their position in Hoffman Plastics that it is illegal for an undocumented alien to get a job and such an employment contract has an illegal purpose and should therefore be voidable without payment of further services or compensation when discovered.

We note the State of North Carolina is considering such a ruling right now. North Carolina is obviously less friendly to trial lawyers than Illinois.

And if the U.S. Supreme Court won’t straighten it out, the states, particularly Illinois, will run around doing whatever they want. So if Illinois business doesn’t want to pay benefits to Illegal aliens, don’t hire illegal aliens. If they get hurt and can’t or won’t find replacement work, the “workers’ compensation penalty” in this state may be huge. Please don’t hesitate to reply with thoughts and comments.

Editor’s comment: Under the Illinois Act, decisions are routinely entered which seem to reward Petitioners for having no job skills, training, or education in exchange for which an employer would provide compensation. Now, as a result of a new ruling, the Commission and reviewing courts may reward claimants who enter and remain in the United States illegally, who illegally reside in Illinois, and who obtained their employment by presenting false documentation to the employer, even though the latter conduct unquestionably violates the Immigration Reform and Control Act of 1986 (IRCA).

In Economy Packing Co., v. IWCC (No. 1-07-2947WC, December 9, 2008), an alien was awarded lifetime total and permanent disability benefits despite her illegal immigration status. At arbitration she admitted “when she applied for her position with [Respondent] she presented documents she received from a source other than the government.” Claimant further admitted she could not legally obtain employment in the United States. We ask the rhetorical question of whether she had an appropriate visa to be present at arbitration.

Claimant was employed on an assembly line “manually deboning chickens.” She suffered an injury to one arm, resulting in typical shoulder surgery. Upon reaching maximum medical improvement, claimant was given the “golden diagnosis.” While there is no question she can work she was given permanent restrictions which precluded her from resuming an assembly-line job. The Arbitrator and Commission found Claimant to be permanently and totally disabled under the “odd-lot” doctrine. They relied upon the following as justification: Claimant was 60 years old; her only formal education consisted of three years of schooling in Mexico; Claimant spoke only Spanish and could not speak, read, or write English; she could not drive an automobile and her only other employment experience had been work on a farm in Mexico.

The Appellate Court found an undocumented alien may establish permanent and total disability under the “odd-lot” doctrine so long as she proves “she cannot sustain regular employment in a well-known branch of the labor market without regard to her undocumented status.” The burden then shifts to the employer to establish “but for the undocumented alien’s legal inability to obtain employment, suitable work would be regularly and continuously available.” The Appellate Court applied this supposed “test” to find the Commission’s decision was not against the manifest weight of the evidence.

In reaching this decision the Appellate Court found the “plain meaning” of the term “alien” to encompass those born in a foreign country who cannot legally work in the United States. Thus, the unanimous majority concluded “all aliens in the service of another” are considered “employees” under the Act and are entitled to the Act’s workers’ compensation benefits. Further, the First District found IRCA does not preempt the Act and therefore it does not bar an undocumented alien from receiving the Act’s benefits even when the alien knowingly used false documents to obtain employment. Please note the United States Supreme Court ruled an employer commits a felony under federal law when it assists an alien whom it should reasonably know is illegally in the United States or who lacks employment authorization; by transporting, sheltering, or assisting him to obtain employment, encourages  alien to remain in the United States; and by referring him to an employer, by acting as employer or agent for an employer in any way, or knowingly assists illegal aliens due to personal convictions.

We know you may not be surprised but, as academics and with the highest respect to our Appellate Court, this ruling simply doesn’t hold water. The Illinois Appellate Court cannot explicitly or implicitly “overrule” the U.S. Supreme Court. In their Hoffman Plastics ruling, the U.S. Supreme Court clearly and unquestionably ruled it is illegal or a violation of U.S. law to hire an undocumented worker. Similarly, it is illegal for an undocumented worker to apply for and accept a job. In Justice Holdridge’s concurrence in Economy Packing, he analyzes legislative history and writes our legislature intended  “illegal aliens qualify as employees.” We ask all of our readers whether such a statement doesn’t diametrically contradict the ruling in Hoffman Plastics by our highest court. If it is against federal law to hire aliens or for aliens to seek and obtain jobs, our state legislature can’t overrule the U.S. Supreme Court and federal law to somehow make it “legal.”

In light of relevant federal legislation as well as this ruling in Economy Packing it should be abundantly clear the only entity or individual who will benefit from an illegal hire is the illegal alien. We support what the Appellate Court noted was the primary purpose of IRCA — “to diminish the employment ‘magnet that attracts aliens here illegally.’” This employer may have thought they were saving lots of money in hiring an undocumented worker—this simple shoulder surgery claim may cost them $500K. If you don’t want illegal aliens to take advantage of you and our very liberal laws and hearing officers, don’t hire illegal aliens.

We urge Illinois business to require verification of legal status of your employees and applicants mandatory. As an Illinois employer, by eliminating the hiring and employment of illegal immigrants you will avoid penalties under federal law and you may also avoid the conversion of your insurance premiums into a life time of welfare payments to an illegal alien. Call 1-866-DHS-2-ICE and report employers who knowingly hire illegal aliens. This toll free tip line was established by the Unites States Border Control. Participate in “E-Verify”, an internet based system operated by the Department of Homeland Security and the Social Security Administration which allows employers to electronically verify employees’ and potential employees’ hiring eligibility. For further information, log on to www.dhs.gov. This article was researched and written by Matthew A. Wrigley, J.D. Please direct comments and inquiries to him at mwrigley@keefe-law.com.

Editor’s comment: We were asked this important question by one of our clients and we want to provide a detailed response for all of our readers. The short answer is yes. We first point out it is not illegal for anyone to verify a social security number to determine whether someone is using a correct and accurate SSN or social security number. By making the statement “not illegal,” we point out there is no law, rule, ordinance or guideline that renders verification illegal—what isn’t illegal is therefore legal.

Why would an insurance carrier/TPA want to verify a social security number? Well, it is becoming more and more common to learn that an injured worker is not legally in the country. Estimates vary but in a country of about 300 million people with a total workforce of about 154 million, there are approximately 12 million illegal workers or slightly less than one in every ten workers.

If you are not aware of the ruling, in Hoffman Plastics v. NLRB, the U.S. Supreme Court clearly stated it was a violation of federal law to knowingly apply for work as an illegal alien, just as it is illegal to knowingly hire an illegal alien. We assure our readers, the federal authorities are very gradually getting more aggressive about actually enforcing this federal law.

But why is the Supreme Court ruling important at the IWCC? Well, they are a government agency—regardless of their political views one way or the other, the Commission won’t knowingly violate federal law nor will they openly require an Illinois employer to violate U.S. law. This is critically important in the biggest of Illinois workers’ compensation claims—wage loss differential and total and permanent disability. In both such claims, the injured worker’s employability following recovery from injury is vitally important. For example, if an injured worker has a heavy position; say a job that requires lifting up to 75 pounds on a regular basis and they suffer an injury creating a permanent 25-pound lifting restriction, the ability of the employee to find a new position that pays him/her about what they made prior to injury is the measure of either wage loss differential or what is sometimes called “odd-lot” total and permanent disability status.

If the employer learns the employee cannot legally be hired in the U.S. due to illegal alien status, it becomes difficult if not impossible for the employee to show what they would have been able to make in a reasonably stable labor market around their home because there is no “labor market” for someone who cannot legally work where they are living on an illegal basis. We caution our readers we have heard of a decision by an Arbitrator where he/she refused to require vocational counseling be provided for an illegal alien. We have not yet seen a decision by the Commission or reviewing courts on the issue. We certainly hope the Commission will never consider “wage loss differential” based upon what an illegal worker can earn in a country outside the United States.

Either way, an inquiry to verify a social security number is legal and a valid concern for any Illinois employer along with its insurance carrier/TPA at the time of any workers’ compensation injury. To verify a social security number, go to http://www.socialsecurity.gov/employer/ssnv.htm. The Social Security Administration requires you to register and indicates you can:

Verify up to 10 names and SSNs (per screen) online and receive immediate results.

Upload overnight files of up to 250,000 names and SSNs and usually receive results the next government business day.

The second option is ideal if you want to verify an entire payroll database or if you hire a large number of workers at a time.

We invite your thoughts and comments on the content of this article. If any of our readers is aware of any proscription against checking a social security number as part of the workers’ compensation process, please send a reply.