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In a case involving an immigrant worker who had filed a
workers' compensation claim under Virginia law, a trial court in Fairfax
County denied the defendant employer's request for information about the
worker's immigration status. While finding immigration status relevant
to recovery under the Virginia workers' compensation law, the court
issued the denial on the grounds that compelling the worker to divulge
his status would violate his Fifth Amendment right against
self-incrimination.
During the course of the litigation on the
plaintiff's workers' compensation claim, the defendant employer inquired
into and requested documents relating to the immigration status of the
worker. (The defendant also filed a motion seeking to obtain
information about the plaintiff's banking account. The court granted
this motion and ordered the plaintiff to provide full and complete
answers about all accounts with financial institutions, including
account numbers.)
The defendant filed two requests, the first
asking for the plaintiff's current legal status and residency status in
the U.S. The second request, for production of documents, sought
documentation of the plaintiff's legal status in the U.S. The plaintiff
refused to comply, arguing that the information sought is irrelevant to
a workers' compensation claim. Failing that assertion, the plaintiff
claimed protection under the Fifth Amendment's right against
self-incrimination.
The court first addressed whether immigration
status is relevant to a claim under the Virginia workers' compensation
law. The plaintiff's argument that legal status is irrelevant was based
on the Virginia Code's broad definition of "employee," which encompasses
"every person, including aliens and minors in the service of another
under any contract of hire . . .
whether lawfully or unlawfully employed. . . ." VA Code Ann.
§ 65.2-101. The court, citing Rios v. Ryan, Inc. Cent., 35 VA
App. 40, 46 (2001), noted that while an "alien" is an "employee" under
the Virginia workers' compensation law, an "illegal alien" could not be
included in this definition of employee "without subverting federal
immigration law." (For a summary of the decision in Rios, see "Virginia Court Rules Undocumented Worker Not
Eligible for Workers' Comp,"
Immigrants' Rights Update,
Mar. 29, 2001, p. 6.) In Rios, the Virginia appeals court held
that an undocumented worker was not an employee under Virginia law and
therefore was not entitled to workers' compensation benefits. The court
made this finding because the worker had been injured prior to Apr. 19,
2000, the effective date of the amendment to the state's workers'
compensation act that incorporated the broad definition of "employee"
cited above.
The court in the present case, however,
relying on the Supreme Court's decision in Hoffman Plastic Compounds
v. NLRB, 535 U.S. 137, 140 (2002), disregarded the Virginia
legislature's expanded definition of "employee" and held that the
Immigration Reform and Control Act of 1986 (IRCA) forecloses an
undocumented person's workers' compensation claim because "even where an
illegal alien suffered an intentional wrong at the hands of his
employer, to award the illegal alien ‘not only trivializes the
immigration laws, it also condones and encourages future violations.'"
(For a summary of the decision in Hoffman, see "Supreme Court Bars Undocumented Worker from
Receiving Back Pay Remedy for Unlawful Firing," IRU, Apr. 12,
2002, pp. 10-12.) The court therefore ruled that the plaintiff's
immigration status is relevant to determining whether he may recover
workers' compensation benefits under Virginia law.
The court next addressed the plaintiff's
assertion that being compelled to respond to the questions about
immigration status would violate his Fifth Amendment right against
self-incrimination. The court, relying on the Supreme Court's landmark
case in Fisher v. United States, 425 U.S. 391, 408 (1976), ruled
that compelling the plaintiff to answer questions or provide documents
about his immigration status would require him to make an incriminating
statement about himself, in violation of the Fifth Amendment.
Accordingly, the court denied the defendant's motion and ruled that the
plaintiff need not reveal his immigration status in the course of
litigating his workers' compensation claim.
While the court's ruling represents a
momentary victory for the plaintiff in this case, it has also extended
the ruling in Hoffman to deny undocumented employees the right to
workers' compensation. Because the court did so despite the broad
definition of "employee" enshrined in Virginia law by the 2000
amendment, this decision highlights the importance of educating
immigrant workers' about their Fifth Amendment right against
self-incrimination. Advocates and others representing immigrant workers
should advise them to invoke this right when employers seek information
about their immigration status.
Xinic v.
Quick, et al., 2005 Va. Cir. LEXIS 266 (Nov. 14, 2005).
By
Monica Guizar,
NILC employment policy attorney
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