Undocumented Immigrant Construction Workers & Their Legal Rights

On July 14, 2004, Yue Xia Zhang said her final farewells to her husband Jian Guo Shen at the Chen Fook Funeral Home in Flushing. Shen, a native of Shanghai, had come to the United States by himself several years ago, as many other immigrants, to make a better life for himself and his family. This all ended on June 7, 2004, when an eight-foot concrete wall collapsed on him and several other workers as they were digging a trench at a construction site. The other men were evacuated, but it took an hour and a half to dig Shen out and he died shortly upon arrival at the hospital. The real tragedy in this situation was that Shen's death could have been easily prevented with safety provisions that by law, should have been there to begin with. In fact, after the accident occurred, building inspectors issued a summons and a stop work order to the employer, and later, issued a violation for failing to provide adequate shoring, sheeting and bracing, during the excavation.

Asian Workers Exploited

This incident is not an isolated one, and it in fact points to a disturbing trend of injuries and fatalities that occur within a largely overlooked population within America, the immigrant workers. Specifically within this population, Chinese workers appear to be particularly vulnerable, with a Newsday investigation reporting that in regards to fatalities among foreign-born workers, Chinese immigrant laborers are one of the most exploited of any immigrant group. (Maier, 2001).

Many immigrants are limited by language or legal status in which jobs they can pursue, so are oftentimes forced to look for work within one of two venues, either places commonly referred to as "sweatshops", or through what are called "day labor jobs". The unsavory reputation of sweatshops is in part due to the fact that many have reported safety violations such as exposed electrical wiring, poor ventilation, and unsafe machinery. Xue Yan Huang, at the age of 65, was working 96 hours a week for less than three dollars an hour at a garment factory in Brooklyn. On the night of August 29, 1996, she and other workers were asked to work a night shift from 5 PM to 7 AM so as to avoid government inspection. That night, she slipped on oily papers covering the floor and fractured her arm. Her boss did not allow other people to take her to the hospital until 4 hours later and later when asked to pay the bill for the injury, denied that she even worked there.

A day laborer is "someone who gathers at a street corner, empty lot or parking lot of a home improvement store (e.g. Home Depot), or an official hiring site, to sell their labor for the day, hour, or for a particular job." (Valenzuela and Melendez, 2003) . These "jobs" are mostly within the construction industry, and include a wide number of dirty and/or dangerous tasks that often expose the workers to contamination from chemicals and other occupational hazards. The National Employment Law Project has noted that, "Day laborers are often assigned to the dangerous task shunned by workers with more options. As a result, day laborers face a higher incidence of workplace fatalities and injuries." (NYSTLA, 2005)

In fact, a study by the New York Trial Lawyers Association found that for construction work, immigrant workers are disproportionately injured or killed in accidents. The report states that day laborers receive little or no protective equipment when performing dangerous tasks, and cites example after example of day laborers who were critically injured or killed due to this issue. The story of Jian Guo Shen is just one example out of many.

Why Immigrants Allow Exploitation

The question as one examines these two different types of venues, is if the conditions are so bad, why do immigrants accept the work? For many, they do not believe that they can find other jobs due to their lack of English skills or lack of legal status in America. Many immigrant workers are in the country without proper documentation, and live in constant fear of deportation. They often pursue jobs that do not require them to file taxes and which pay only in cash, where they can remain undocumented and hopefully undetected. Not only do these immigrant workers feel limited in the type of work that they can pursue, within the jobs that they believe are open to them, their rights can be severely compromised. Employers can use illegal threats of deportation to control their immigrant workers, to prevent them from organizing, complaining about safety conditions or other abuses, and standing up for their rights.

Rights Given to All Workers

This also points to another basic problem for immigrant workers: their lack of education regarding their legal rights. For some, they do not realize that what their employers are subjecting them to is illegal and consequently do not pursue legal action against them. As one example, similar to sweatshop labor, many construction accidents involving immigrant workers are not properly reported and in fact are not reported at all. At Caesar & Napoli, we have noted that when accidents do occur, an employer will oftentimes take the injured worker to the hospital and advise him to tell the doctors that he fell down the stairs or that he was hurt in something not work-related. This is sometimes done with the promise that if the worker conceals the truth, the employer will pay for the medical bills, a promise which is more often than not, not kept. This is done to protect the employer, who can in the future deny any association with the worker at all, and with no written record of the accident, it can become much more difficult to take legal action against them.

Immigration Status Irrelevant

For others, even after accidents occur, the injured workers are afraid or unwilling to take any sort of action against their employer. Many are concerned with their immigration status, and the consequences for them and their family if they do take action. However what many of them do not realize is that regardless of their immigration status in America, legal options are still available to them. It is possible and completely within their rights to try and claim money from the employer for their negligence. There are hundreds of cases with substantial monetary recoveries, for clients who do not have proper legal documentation. Immigration status is irrelevant to a personal injury recovery.

New York Construction Laws

What is being done to help these immigrant workers and protect their rights today? New York laws such as Labor Law Sec. 240, the "Scaffold Law" help protect immigrant workers by requiring building owners and general contractors to provide workers with proper scaffolds, hoists, and other worksite safety equipment for use when working at elevations. While laws such as these will not always be followed by contractors, at the very least, they provide a legal avenue in which the responsible parties are held responsible for money damages that do incur. However, they are not sufficient unto themselves, for it is evident that there are still immigrant workers who are taken advantage of and whose rights are being violated. Since many of the immigrants are so afraid of being deported and try to avoid any contact with authorities at all, the situation is quite difficult. What is most important is to educate immigrant workers about the legal options available to them, so that if accidents do occur, they know how to proceed. They must be informed that there is considerable money available to them, regardless of immigrant status, that is their right to pursue. Caesar & Napoli is committed to providing services for people injured in accidents and has a history of fighting and winning cases for people such as this. If you or someone close to you is injured while on a worksite, call Caesar and Napoli, a law firm that specializes in representing injured victims. This is the only safe way to learn all the rights and entitlements everyone has, regardless of immigrant status.

If you or a loved one is in need of legal assistance, call Caesar & Napoli at (212) 226-2100, toll free (800) 945-0643, or 24 hours a day at (646) 733-8050. If you prefer you may submit an online questionnaire. The initial consultation is free of charge, and if we agree to handle your case, we will work on a contingency fee basis, which means we get paid for our services only if there is a monetary recovery of funds. In many cases, a lawsuit must be filed before an applicable expiration date, known as a statute of limitations. Please call right away to ensure that you do not waive your right to possible compensation.