Obama imigration strategy may backfire?

This article in the Wash. Post explains why some Democrats are alarmed that BO's imigration strategy may backfire because the Koch brothers are financing Latinos to help get them their driver's license. As they learn the guidebook laws on how to drive they are also learning why the Republicans believe in their philosophies. It is naturally expected that all the illegal immigrants that are crossing the southern border are going to be Democrats. But what if that will not be the case? I have quoted some key statements in case this article needs a subscription.
...... Koch brothers make push to court Latinos, alarming many Democrats

 

This idea of teaching skills and passing along some knowledge is better than the continuous promise of handouts that will perpetually keep folks poor. It is also good to see successful Americans teaching, even a little, the uneducated and poor. Why leave it up to President Santa Clause and his band of elves?

 

Well maybe the Koch Bros. can finance some lobbyist to help draft legislation that don't let construction companies completely off the hook when undocumented workers get injured on the job or shafted out of his wages.

 

What? There are undocumented workers here? I thought the federal government was required by law to deport illegal/undocumented workers! If the Koch Bros use their money to add another law to the books, will the government abide by it, or just ignore it like they do the current immigration laws?

 

The link didn't load. Basically hiring illegal workers is very advantageous to homebuilders and consruction companies that identify them as independent contractors. When one gets crippled through an on-the-job injury, the company profiting from his labors has pretty much fulfilled its obligations when they call an ambulance on the cell phone. The rest is left to the taxpayers. Again, I know the Republican answer is to put the full brunt of immigration law on the workers (who will, as they have under every modern administration, sneak in for the most menial jobs). But if we want to stop it, we can pretty easily end the subterfuge of "independent contracting" and make it a little less advanageous to exploit illegals and maybe make it a little easier for American construction workers to earn a living wage on a safe worksite. Of course that would put a burden on "job creators" so it probably ain't gonna happen.

 

You should do a little more research. In fact, you should do some research.

In Texas, to qualify as an "independent worker" you have to be able to determine your own hours, be free to work for others, have your own tools, etc. Otherwise the injured worker gets workers compensation. Just having a construction company rep. state that somebody was an independent worker will not hold up.

Then again, they wouldn't get hurt here if they weren't here illegally. I put the full brunt of the immigration law on the federal government. Last I checked, the President you support is not complying with the law for political reasons.

 

Let me just make sure I understand what you are saying. Are you saying that it is not common for subcontractors to use illegal labor to build then ditch them when they get hurt?

 

Is it common. No, it's not common. Does it happen? Now and then. If it does happen, the laborer needs only go to his local Spanish speaking attorney and file suit- and he/she will win easily. That does happen.

The laws already exist to punish employers that try this tactic. Crockett wants to implement laws that already exist.

 

I'll wait for deez to respond as he used to represent these folks.

 

While your waiting for your personal attorney for verification, you can read the Texas Workers Compensation Act online to get all the information you need. It's very exciting.

 

No need to be rude, I just like to hear more than one educated opinion when making up my mind about something that goes against conventional wisdom.

 

My apologies.

 

So strange story. I was rear ended twice today. Both by individuals of obvious Mexican/Spanish decent. Both fled the scene. Afterwords, I really questioned my stance on immigration.

If we offered licensure, would they have stopped?

In both cases (different cities), the police told me that they would not respond or do anything because nobody was critically injured. I am totally disgusted with where we have come...

I am a little sore from number 2. First car was rental, second was my truck. Minor damage but in general pisses me off.

Sorry for high jacking this immigration thread.

 

http://www.wfaa.com/story/news/loca...contractor--misclassified-workers--/26321091/

If it does happen, the laborer needs only go to his local Spanish speaking attorney and file suit- and he/she will win easily. That does happen.

Well I can't wait. Since this guy is crippled for life, he should be entitled to a pile of money.

 

You will have to wait.

If his employer carried worker's comp., he will get the statutory work comp benefits. Medical care for life, and an indemnity payout to cover lost wages. If his employer didn't carry comp., the employer loses all common law defenses if the employee sues.

 

What if his employer was a shady sub-contractor with no comp and no/little collectability?

 

Then the answer is "it depends". This wouldn't happen on public projects, because employers must have comp. when performing those.
If it were a private project, the general contractor's work comp may have to respond depending on the determination of "independence of the subcontractor". Were they truly independent or not? The fall back is a lawsuit against the employer, the general contractor, and the owner for an unsafe work environment.

 

I've done some research iotragenic. Now you show me the links to construction companies rushing to pay the hospitals for the string of construction workers brought in injured; help this poor man paralyzed working in unsafe conditions for $10 an hour and the family the man killed in Austin. I'm sure an industry that spends billions on advertising each year could send a PR pro to put all my worries at ease since these are highly publicized cases and of course they are doing all the law requires them to do.

 

Frankly, you're not making much sense. You began this stating that companies get off the hook by "identifying" (whatever that means) employees as independent. I showed you that they are not in compliance with the work comp law in Texas if the employees are not independent, regardless of how an employer "identifies" them. Misclassifying subcontractors/employees does not allow work comp to be denied, and such fraud could land the culprit in jail. You want laws to stop the practice, but the laws already exist. I am guessing your research could be found lacking.

 

Maybe it would be as simple as applying the laws in place on public buildings to the whole construction industry. The simple truth, explained in the NPR and WFAA articles, is that a helluva a lot of undocumented construction workers get hurt and the taxpayers end up footing their bill. It happens more in Texas than elsewhere. Is the law at fault? or maybe that we keep electing the Chamber of Commerce Judges? You state that the law requires employers to pay, but the law is apparently easier to avoid than a 380 pound Nose Tackle in the open field. Simply hired a "contractor" with no assets who in turn hires "contractors" with no papers or insurance for $8-10 an hour and voila, nobody with any assets or insurance has any liability

 

Wow. I go to bed last night and wake up to an argument over illegal aliens in the construction injury and occupational injury/workers compensation law. My son is getting his first haircut today, and we're sorta making a day of it, so I'm going to be in the Wiesbaden area most of the day with a quick stop through Darmstadt to go to this place (http://maruhn-welt-der-getraenke.de/), which is the most awesome friggin' beer store in the world. The bottom line is that I won't be able to explain it until maybe tonight and likely not until Monday, but I will explain it.

The short answer is that iagrogenic doesn't know as much as he thinks. He hasn't said anything that's blatantly false, but he grossly oversimplifies and leaves out a lot. Feel free to read the Workers Compensation Act if you want, but that only gives you maybe a third of the story.

 

And Deez hasn't said anything that is blatantly true........but I look forward to the ambulance chaser viewpoint.

 

Do I understand it correctly? That any gov't contract ( city county state fed etc) requires any contractor to verify those they employ are legal? So the General Contractor requires any sub to say they have verified that?
And that each sub also carries some minimum insurance?
Could anyone lie or falsie documents? Of course but if caught I don't think they'd stay in biz long and they sure wouldn't get another gov't contract.

So why not as has been suggested here extend those requirements to private contractors and subs?

 

In Texas, a contractor must carry work comp on publicly funded projects, and is required to use "E-Verify" to check employees' immigration status. Federal law requires legal immigration status for employees, but the feds would have to enforce the immigration laws for that to be effective, and the current administration is not interested in enforcing the laws of the United States when it comes to illegal aliens.

Government contracts require minimum insurance coverage and limits- provided by insurance companies with minimum financial ratings- of both general contractors and subcontractors, and those coverages and limits are verified.

I'm guessing 99.9% of owners and/or general contractors building private projects require certain, minimum insurance limits and coverage from general contractors/subcontractors , and the vast majority of general contractors and subcontractors carry workers comp in order to have a chance to obtain those contracts.

In Texas, a company does not have to obtain work comp, but they do lose many potential legal defenses if they "go bare". In the construction arena, not having work comp eliminates the contractor from being considered as a builder on most projects.

If a subcontractor is truly independent (by legal definition) (and they do not carry comp) a general contractor/owner that hires that subcontractor does not have to provide work comp for them and will not be charged a work comp premium to cover the subcontractor. That doesn't mean that the subcontractor would be hired. In fact, most general contractors won't even consider hiring subcontractors without workers comp.

Misclassifying employees as independent contractors is used by scofflaws to avoid buying workers comp., or to reduce the cost of workers comp (work comp premiums are based on payroll, so if an employee is misclassified as an independent contractor, the employer avoids the premiums associated with that employee's payroll) This is against the law, and will result in the employer being penalized if their fraud is discovered.

The idea of requiring all construction contractors to buy workers compensation is a great idea. It will help some injured employees obtain medical care and lost income, and reduce some lawsuits from injured employees.

Enforcing current immigration laws,requiring all contractors to carry work comp, and placing draconian penalties on employers misclassifying employees as independent contractors would "fix" most of what is broken.

 

Crockett and Larry,

I'll start with where iatrogenic is right and then explain where he's wrong (or more precisely, incomplete).

1. He is right that contractors on publicly financed projects must carry workers compensation insurance.
2. He is right that if any company of any sort does not carry workers compensation insurance and an employee gets injured on the job, the company not only loses the exclusive remedy protection (meaning immunity from on-the-job injury lawsuits) that comes with workers compensation subscribership, but the company loses important common law defenses that are typically available to other personal injury defendants. Specifically, it cannot assert the contributory negligence, assumption of the risk, or fellow employee doctrines. (It can allege that the employee intentionally injured himself and can allege that the employee was intoxicated at the time of his injury.) It does not create a strict liability situation. The worker still has to prove negligence on the employer to win.
3. He is right that what makes a worker an employee or independent contractor is not what the employer identifies him as but is based on the facts surrounding the arrangement.
4. He is right that if an employer misclassifies a worker as an independent contractor when he's actually an employee, it does not eliminate the ability of the worker to get comp benefits (though it won't be an easy fight).

Nevertheless, Crockett is very right that the men who do the actual work on construction and homebuilding sites frequently lack workers compensation protection and that hospitals and taxpayers are often left on the hook for the medical bills. It is certainly more common on home building projects (even for some big builders) than on commercial construction projects, but I've seen it happen on commercial projects several times.

Here's how the taxpayer or hospitals get ripped off. The worker who is actually building the houses, etc. is often employed by a small contractor. They frequently do not carry workers compensation insurance. As indicated above, this exposes the small contractor to getting sued and losing his common law defenses. However, the small contractor often does not carry a liability policy, and even when it does, it rarely covers employee injury claims - only covers claims by third parties. So yes, you can sue the employer, and you'll likely win, but you'll be trying to collect your judgment against a pickup truck, a toolbox, and if you're lucky a little cash.

iatrogenic jumps from the contractor to suing the general contractor and/or the premises owner. Yes, that's theoretically an option, but far more often than not, it isn't a viable one. You could sue them if they affirmatively did something to cause the worker's injury (and even that isn't always straightforward), but usually, that isn't what happened. Usually, the construction worker is injured by the negligence of his employer or coworker, and general contractors and premises owners generally don't owe a duty to ensure that their contractors (such as the injured workers' employer) perform their duties in a safe manner.

The only way you can get at a general contractor is if it retains a right of control over the details of the work performed by the injured person. Usually, they do have such control, so why don't these cases typically work? Because the nature of the control has to be very specific not just to what's going on on the job site but to the actual mechanism that caused the injury. Nevertheless, the real barrier is that there's an enormous mountain of Supreme Court and court of appeals decisions reviewing the evidence of control that typically exists and deeming it insufficient as a matter of law, which means the court is wiping its *** with your Seventh Amendment rights. You don't even get your day in court. The last time the Supreme Court examined the evidence in one of these cases and didn't toss it out - 2001, and that was a more plaintiff friendly court than what we have now. Trial judges know this, and they err on the side of tossing your case out, and if they don't and you win at trial, it's going up on appeal with horrendously bad odds of getting upheld. It's as close to a dead cause of action as you'll ever see, and frankly, even if the court wasn't tossing these out, it's a somewhat perverse cause of action. Essentially, the more the general contractor does to try to protect the men on the ground by getting involved with safety measures, the closer he gets to facing liability. The smartest thing a GC can do to avoid getting sued - pay no attention to safety. That's ****** up.

If you decide to sue the premises owner, you're likely to run into Chapter 95 of the Civil Practices and Remedies Code. That imposes the same liability threshold as the general contractors have but includes an additional requirement that the premises owner have had "actual knowledge" ("should have known" isn't good enough) of whatever the dangerous condition was that caused the injury and failed to adequately warn. Evidence of "actual knowledge" is hard to come by. Basically, you need an admission by the premises owner either on the record or to a witness - not likely to happen. Him being on site often isn't even enough, unless you can prove that he actually saw the condition. Good luck with that.

Nevertheless, suppose you pull off a miracle. You sue the GC and property owner, and the Texas Supreme Court decides not to toss your case out. (Maybe the construction industry's lobbyist accidentally wrote out his most recent campaign contribution checks from the wrong account, and they all bounced.) Before trial, the GC and the property owner are going to designate the injured worker's employer as a responsible third party, and of course, they are going to allege contributory negligence on the part of the injured worker (which a GC and a property owner can do, even if the employer cannot). That means the jury is going to be able to apportion fault between the GC, the property owner, the employer, and the injured worker. They are going to get a jury charge packed with instructions on all the legal duties an employer has to protect his employees from injuries and more instructions on how narrow the GC's and property owners' duties are and reasons why the jury should not apportion fault to them. Furthermore, since the employer doesn't have liability insurance to cover the action, he's likely to be unrepresented. That means the GC and property owners' lawyers are going to beat the living hell out of the unrepresented employer (who may not even show up), and the jury will most likely apportion fault primarily to the employer, which does nothing for the worker or for his medical providers. Furthermore, the GC and property owners are usually going to present much better to the jury. They're usually going to be white, good-old boys who run a family business, dress in red-white-and-blue, and attend the local Baptist church. They're going to be easy to like. The plaintiff is going to be an illegal alien babbling on the stand in Spanish and usually without much personality. It's tough to make a jury sympathize or identify with that person.

The bottom line is that the suit against the GC or property owner to recover more than nuisance value isn't an option the vast majority of the time, and that leaves the injured worker with no real remedy and facing ER bills in the tens or hundreds of thousands. A few things happen at that point. If his condition is life-threatening, he may be able to hustle Medicaid benefits, or he may be eligible for the Medical Assistance Program (MAP) if he's in Travis County. If he cannot or does not pursue those options, the hospital and ER doctors write off their bills and make up the losses on other patients. Either way, the public gets hosed.

But sometimes these workers do recover money. How does it happen? It's all a matter of luck. Did the guy who dropped the load of bricks on him work for the injured worker's employer or for some other company? If he worked for his employer, you're probably screwed. If he didn't, then you might have a case, because his employer may have carried insurance that covers third party claims. That's the kind of factor that will determine success or failure.

In rare cases, I've also turned the independent contractor misclassification hustle around on the employer's third party liability insurer. I'll stipulate that my client was an independent contractor (even though everybody knows the employer was bullshitting all along), which makes his claim a third party action, triggering the liability insurer to defend the employer. However, that has big drawbacks. First, a company's duties to independent contractors are MUCH narrower than they are to employees, so this option just isn't available very often. Second, what if the plaintiff's coworker actually injured him instead of his boss? You're stuck with establishing that your client was an independent contractor but that his coworker was an employee. That gets weird. Third, the company regains its common law defenses. I've done it a few times, but every time was very contentious and result in a jury trial. The cases never settled.

The point is that the paths to success (and therefore a chance for the hospitals and ER doctors to get paid) are few and narrow. The paths to failure are many and extremely broad.

 

This really sucks. I hope you're back to 100%.

 

We should allow them to get licenses. It's nothing more than stupidity that keeps us from doing so.

As for your wrecks, your uninsured motorist policy will cover both accidents (even though you were in a rental). However, if you are sore, go to a doctor immediately. With each passing day, you build the carrier's argument that your injuries are downright ********, not as bad as you say they are, or caused by something other than the wrecks. Furthermore, when you go, identify on your intake forms and orally to the doctor EVERY friggin' part of your body that feels even slightly abnormal since the wreck, and follow up with any care - don't blow it off.

You should consult a lawyer (especially before giving a recorded statement to your carrier) and at least consider hiring one. Having two impacts on the same day can create some twists and turns. There are a lot of hacks out there who make money by volume rather than by doing quality work, and there's no way for you know who they are. (Some people think attorneys who advertise suck. That's not an indicator. Some suck. Some don't.) I know who they are and more importantly, who they aren't. Feel free to PM me, and no, I would not try to collect a fee or make money on your case. (In fact, it would be illegal for me to do so.) If you end up handling it on your own but have some questions, I'm happy to answer them as well.

Best of luck.

 

Good stuff Deez. This is a great thread from all. Please continue.