Undocumented immigrant issues left unanswered

May 4, 2016

A recent Indiana Court of Appeals decision didn’t provide the guidance one attorney had hoped from the court regarding injured undocumented workers. But the judges did decide that the worker’s immigration status is important in his lawsuit.

The Court of Appeals ruled in Noe Escamilla v. Shiel Sexton Company Inc., 54A01-1506-CT-602, that mason Noe Escamilla’s immigration status is relevant in his lawsuit seeking relief from his employer after he was injured when he fell at his worksite. He can no longer lift more than 20 pounds. Escamilla was an undocumented immigrant at the time, though he did pay taxes on his wages and had applied in 2014 with the Department of Homeland Security to become a permanent resident.

Judge John Baker dissented in the case, saying he didn’t see how the immigration status was relevant and allowing consideration may reduce the effectiveness of state tort law.

Both parties in the lawsuit invited the appeals court to make judgments about the rights of undocumented immigrants to recover lost wages, but the COA declined and instead ruled on the evidence of the case.

There are about 93,000 undocumented immigrants living in Indiana, according to data estimates from the Migration Policy Institute, so future cases involving undocumented immigrants claiming lost wages are likely. That’s why Escamilla’s attorney, Timothy Devereux with Ladendorf Law in Indianapolis, said he was disappointed the Court of Appeals did not rule on the bigger issues at stake in the case. He said his client will file for rehearing by the COA, and he would love to see the case taken up by the Indiana Supreme Court.

“This doesn’t provide any guidance for attorneys, which is what you hope for from Court of Appeals decisions,” Devereux said. “How do we deal with this in the future? I’d like the Indiana Supreme Court to weigh on the broad implications this case has.”

He said the Court of Appeals should have laid out how to calculate future wage loss in these kinds of cases with undocumented immigrants, since that has not been decided in Indiana.

The case also discussed whether Escamilla’s future compensation for lost wages should be calculated on what he would have made in the United States, or what he would have made in Mexico, where he was born. Escamilla’s case was hurt when the Court of Appeals found his expert could not testify because she did not take Escamilla’s immigration status into account when making her estimates about what Escamilla could earn. That’s something Devereux said he did learn from the case.

“Basically, if my expert considered more evidence, my expert could have testified based on U.S. dollars how much he could have made,” Devereux said. “The court said you need to take a closer look at immigration status, and we’ll do that in future cases.”

Devereux believes Escamilla’s wages should be given in U.S. dollars because he has no risk of being deported. He’s taken steps to become a permanent resident, he’s married to a U.S. citizen, and he’s not leaving.

“I think Baker summed it up best in his dissent when he said immigrants have less than a 3 percent chance of being deported,” Devereux said. “I think you’re asking the injured party to prove a negative. What happens if the injured party produces enough evidence to prove future wage loss in this country? Then the burden shifts to the defendant to oppose the future wage loss and he has no evidence of deportation.”

Alexander Limontes, an attorney with Mitchell Hurst Dick and McNeils in Indianapolis who wrote an amicus brief on the case for the Indiana Trial Lawyers Association, said there are too many employers taking advantage of undocumented immigrants’ labor. He said insurance premiums charged to companies who employ undocumented workers are based on U.S. dollars, so the wages Escamilla could earn in the future should be based on U.S. dollars as well.

“Obviously they want the wages based on Mexican and Honduran dollars because it’s less money for them,” Limontes said. “But their rates are based on U.S. dollars.”

Limontes also said if Escamilla is not granted the wages he deserves, taxpayers will have to bear the burden for him because he’ll probably get on state and federal programs funded by taxpayers, especially since he is on his way to becoming a U.S. citizen.

“Shiel Sexton and other companies need to be held accountable so the right person is paying,” Limontes said. “That’s the whole purpose of tort law, so it doesn’t turn to the public to take care of permanently injured people.”

Limontes compared working with undocumented immigrants to unlicensed and unrestrained drivers on the roads. He said uninsured drivers who are injured in accidents can still recover if they are injured.

“There are available remedies for people who drive around without insurance. They can still recover. How is this any different?”

Kris Altice, general counsel for Shiel Sexton, the contractor that oversaw Masonry By Mohler, the company Escamilla was working for at the time of his accident, declined to comment on whether Escamilla should get wages based on what he could have made in the U.S. or Mexico, but did agree that this is a big issue. She said it’s difficult for her company to track all the employees its subcontractors hire, which is why undocumented workers such as Escamilla can work for them.

“It’s definitely a bigger issue than (just) in Indiana, but you expect your subcontractors to follow the laws,” Altice said.

She said the cost to audit all of her company’s subcontractors for undocumented immigrants would be staggering, and even requiring the companies to provide additional certification “is only as good as the paper it’s written on.”

“That would be a huge undertaking to do that,” Altice said. “We just don’t have the staff for that.”

Altice also said that while Shiel Sexton is technically the defendant, the company is indemnified from any workplace claims filed against Masonry By Mohler, which is handling the defense.

Linda Hamilton, chairman of the Worker’s Compensation Board of Indiana, said undocumented immigrants are entitled to two, possibly three, things based on the evidence. They are definitely entitled to temporary total disability, wage replacement while the person cannot work. Medical care is a second part, and the third is permanent partial impairment or permanent total disability if the person cannot work again. Escamilla is seeking permanent total disability in his suit.

Hamilton said a bill was introduced in 2015 into the Legislature that would have not allowed undocumented workers to get wage replacement benefits, but that bill did not go anywhere. She thinks something should be done to compensate undocumented immigrants for future earnings they could receive if they were injured, but isn’t sure what that would be.

“I remember a case where there was a whole staff full of undocumented workers. They worked in a Chinese restaurant in substandard conditions. The restaurant took advantage of the situation. If one got injured, wage replacement should be paid; in the past that has been allowed to a limited extent.”•


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