Illegal immigrant wins law suit

An illegal immigrant who was hurt working illegally has successfully won his law suit:

A Bronx day laborer injured on the job has won a $4 million settlement, his lawyers announced yesterday, describing it as the largest payout to an undocumented immigrant in history.

In the early afternoon on October 18, 2001, the worker, who is Mexican, crashed 30 feet to the ground when the scaffolding supporting him at a Bronx construction site collapsed. He survived but sustained grave injuries, including loss of vision in his right eye, brain damage, liver and kidney lacerations, a collapsed lung, loss of his sense of smell, and broken teeth.

The 33-year-old immigrant was hospitalized for three months, at a loss about how to support his three children and wife, who live with him at the Bronx. Living in this country illegally and working off the books, he considered a lawsuit against his employer only after his brother visited an advocacy group in the city on his behalf, the injured worker said yesterday.

The laborer is carefully guarding his identity. Wearing beige work boots and a black New York City cap, he expressed fear that family members would be kidnapped in his native Puebla if the windfall were to be disclosed.

"The lesson today for all the undocumented immigrants of New York is they have the same rights to access the courts in New York City as any American citizen. Our client came, the family of our client came, to the association believing they didn't have any rights because they were undocumented," the lawyer in the case, Brian O'Dwyer of O'Dwyer and Bernstein LLP, said at a press conference yesterday.

"We took the case and we fought against the owner of the building and the companies employing him, and in the end we received a payment for him of $4 million. This week they are going to pay these $4 million to our client," Mr. O'Dwyer, who spoke in Spanish and English, said.

The lawsuit, filed in early 2002 in Bronx Superior Court, charged numerous labor violations. They included "failing to provide, construct, install and/or ensure suitable appropriate and required safety harnesses, nets, life lines, belts, guardrails, personal fall arrests and/ or protection systems" and "failing to provide a training program for each employee who might be exposed to fall hazards."

This December, a settlement was reached with the defendants, 421 Melrose L.L.C., Ben Den Corp., New Century Construction Corp., and Arrow Restoration Inc. Representatives of the companies could not be reached for comment.

The director of the Center for Labor and Employment Law at New York University School of Law, Samuel Estreicher, confirmed that, as far as he was aware, it was the largest labor settlement paid to a single undocumented immigrant.

The injured worker, showing reporters the deep gash across his chest and the spot where his head had been operated on, seemed more startled by the attention to his newfound wealth than elated by the legal victory.

"They are pains that won't go away for years and years. ... I can't play with my children anymore. In reality it's a different type of life," the man, whose children are said to be American citizens, said in Spanish.

He said he still is not sure how he would spend the money.

"Now my plans are to study something, to see to the future of my children, and after that only God knows," he said.

The worker, his lawyer, and advocates from Asociacion Tepeyac, the advocacy group that helped him with his case, said they hoped it would show other undocumented immigrants that, despite their illegal status, they are protected by American labor laws.

Only yesterday, in a move that immigrant workers' advocates found encouraging, the U.S. Supreme Court declined to consider a case in which a company sought to inquire about the immigration status of former employees who sued it.

The case, from the San Francisco based 9th Circuit Court of Appeals, involved a group of 23 Latina and Southeast Asian women who sued a company, Nibco Inc., alleging job discrimination. Nibco, a manufacturer of pipes and valves, said it needed to know workers' immigration status to determine entitlement to back pay and other potential damages. That, the former employees countered, could create a chilling effect on immigrants' willingness to assert workplace rights.

The lower court agreed. "Granting employers the right to inquire into workers' immigration status in cases like this would allow them to raise implicitly the threat of deportation and criminal prosecution every time a worker, documented or undocumented, reports illegal practices or files a Title VII action," Judge Stephen Reinhardt wrote in an opinion.

Mr. O'Dwyer, who has represented about a dozen undocumented immigrant day laborers killed or injured in construction accidents at nonunion worksites during the past decade, said cases like the Bronx day laborer's are becoming increasingly common in New York.

"There is just a huge number of undocumented being exploited," Mr. O'Dwyer, son of the former City Council president Paul O'Dwyer, said.

"It's not always bad payment," he added, noting in the case of the laborer he received about $18 an hour, "but it's this total failure to provide a safe place."

According to statistics from the Department of City Planning, 58% of construction workers are foreign-born. With thousands working off the books, as this laborer was, the actual percentage is considered to be much higher, and most of the workers are undocumented.

The New York City District Council of Carpenters has been urging for five years that the city require that people who erect scaffolding undergo training. Legislation that would adopt a mandatory 32-hour training course, as recommended by the federal Occupational Safety and Health Administration, is currently at the committee level at the City Council.

"We don't feel scaffolding erection is a day-laborer type of profession," the political director of the carpenters council, Stephen McInnis, said. "The fact that someone can walk off the street and then be 60 or 80 feet in the air without any training. ... It's one thing using them for unloading boxes, but we think it's unethical in such a dangerous industry like scaffolding."

In an industry in which workers, like the Mexican laborer, already work off the books, however, rules like those would be difficult for federal and city regulators to enforce. Indeed, many undocumented workers say they neglect safety problems, for fear of jeopardizing their employment. In the more than 15 years the laborer who won the settlement worked illegally in America, for example, he never questioned the dangers implicit in his employment, he said yesterday.

"I'm accustomed to it," he said. "Since I've arrived in this country I've done this type of work."

Hopefully this will make employers less likely to hire illegal immigrants to do jobs that should be done by those who have a legal right to work in this country.

In the news:

Undocumented immigrant wins 4-million-dollar suit for workplace fall

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Injured immigrant collects $4M

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