|
 Never miss an important safety article, subscribe to this feed!
  
Undocumented Liability
If the driver of your truck is an illegal immigrant and he gets into an accident, you may watch the dominoes fall
By David Rattigan
In one of the emotionally charged anecdotes that fuel an increasingly complicated national debate, an illegal immigrant, driving a car without a license and no insurance, gets into a car accident with another driver.
In one version of the story the illegal immigrant is deported, and in another he drives off before police arrive. But in every case, the accident victim is left with no one to pay for property damage or injuries because the immigrant has few funds and no insurance.
But what happens when the worker who presented legal-looking papers turns out to be an illegal immigrant?
In a worker-starved industry such as tree care, many owners employ undocumented workers who are in the country illegally. Some do so unknowingly. But if that worker is involved in a vehicle or machinery accident, a company risks significant consequences.
Gloria Cordle is an insurance broker with NRC Insurance Agency in Modesto, California, and also president of the California Association of Tree Trimmers. As such, she has had many discussions with tree care company owners and managers about the issue of liability concerns.
"Any time you have an illegal person, you should have concern," says Cordle. Not because you won't be covered by insurance, she says, but because if your company employs an undocumented worker and that worker is involved in an accident, that incident can create a domino effect that could impact both the individual and your company.
Although immigration law is federal, many states have jumped in with their own regulations recently and employment laws vary from state to state.
Consistent with their mission, the Labor Commissioner and Employment Development Department in California are primarily concerned with the protection of employees … that they are making minimum wage and that the employer has a workers' compensation program in place. The immigration issue is kept separate, as the agencies seek to maintain a workplace environment in their state that is not exploitative.
"They want to be sure that all employees are treated equally," Cordle says.
While some reports across multiple industries indicate a higher incidence of workers' compensation claims made by undocumented workers, Cordle notes that for many undocumented workers, the exact opposite is true.
"It depends on the employee," she says. "Some employees are here illegally, they work real hard and will never want to report an accident. They don't want to go into the hospital, and don't want somebody else reporting to immigration that they're here illegally. But if there's a major claim that occurs or an accident or something with a piece of equipment, it will get to the hospital, (and) the hospital does have certain obligations that they have to fulfill. OSHA or other organizations out there can get involved, and they can come back to the employer who has the illegal worker."
In the case of general liability, experts say that the issue is less about the workers' immigration status and more about the fact that an undocumented worker (or other foreign nationals) won't have a valid driver's license.
Cordle notes that in her home state of California, consistent with the other state agencies, the highway patrol's concern is safety. She cites 1997 statistics from the California Department of Motor Vehicles that 12 percent of drivers had no license.
"You know that it's increased since then," she says.
"Let's say (an undocumented worker with no license) is in an accident or pulled over for speeding. Generally, the vehicle will be impounded (in most cases) and the employer will be responsible for storage and towing. They could get cited for allowing someone without a license to drive a vehicle."
In the case of an accident, the situation could snowball from there. The business owner may have to answer to his insurance company, because a non-licensed driver, who is therefore not authorized to drive the company vehicle, was behind the wheel. (Employers are often required to check the license of all employees that use their vehicles, and list them with their underwriter, often through their broker.) Ignoring these requirements or hoping to get by can put your entire company in jeopardy.
"There's a domino effect, as things start happening to that employer," Cordle says. "[The employer] was just thinking, 'the guy's going around the corner, he doesn't have a license, it's no big deal,' and then he pulls out of the driveway and hits a car. Instead, employers subject themselves to serious fines and subject themselves to losing their insurance policy, and they can be cited by the police. If it's a really nasty accident, the district attorney's office could even come in."
Generally, an insurance carrier will step up and pay part or all of a claim, Cordle says, but the employer runs the risk of the carrier balking, because the policy holder has not held up his end of the insurance agreement by putting an unlicensed driver behind the wheel. The policy holder also runs the risk of the carrier canceling his insurance.
"It gets convoluted with all the different scenarios that can happen," Cordle says, noting that there are many types of policies and insurance companies. "When you get into the legal system, you have attorneys that will create any scenario that will work for their client, from either side of the fence."
Jeffrey A. Newman, a Boston-based corporate attorney and litigator who acts as outside general counsel to several companies, relates that more and more insurance companies have sought to invoke the "negligent entrustment" clause against policy holders who let unlicensed drivers use their vehicles. While the attempts thus far have been unsuccessful, he says, it is a valid legal claim for the insurer to make, and a ruling in one jurisdiction could have an impact on future rulings.
"Some of these insurers are starting to disclaim coverage when the company was aware or should have been aware that these circumstances existed," Newman says. "It's still not a major trend. It's something that some insurance carriers are looking at more closely now than they have in the past. So far, the cases that have come down have supported the insured, because the courts have determined that whether or not someone was licensed or not wasn't the critical factor in why this happened. The courts have determined that licensure was a secondary issue, and you've got to live up to your contract.
"But it definitely is an issue that companies have to be concerned about, because if you get a major case – a death case or one in which somebody's paralyzed – it can put a company out of business if they don't have insurance," he says.
Newman notes that a company can easily find out about an employee's driving record, because it's all in a Department of Motor Vehicles database.
"If you get someone who comes from another country and had a really terrible driving record there, how are you going to find that out?" Newman says. "It's very difficult to find out about a person's background when they come from another country."
A business owner who wants to employ a foreign worker legally finds himself in a Catch-22 situation, according to Roy J. Watson, a Bedford, Mass.-based corporate and business immigration lawyer who co-chairs the Massachusetts' Bar Association's immigration law section. The immigration process moves slowly, with an outdated cap on low skill labor.
"The system's broken because, assuming zero issues and zero problems, you are looking at somewhere in the order of eight to 10 years before you can employ somebody as a simple laborer," he says. "How many people are going to spend $10,000 and wait 10 years to employ somebody in a $20,000 to 30,000-a-year job."
For undocumented workers, the wait is likely to be 10 years for those who overstayed the time on their visit or a lifetime ban for those who snuck in, he says.
Some undocumented workers will rely on forged driver's licenses and Social Security numbers, which a business owner is likely to discover. Some will choose to look the other way.
"I've had employers call me and say, 'Gloria, I'm not sure what to do. I have an (undocumented) employee and I just got called by Social Security,'" says Cordle, who recommends that they follow the law.
Randall S. Stamen, a Riverside, Calif.-based lawyer representing tree care companies in litigation and risk management and author of California Arboriculture Law, reports that many of the companies that he represents will not hire undocumented workers, for all of the reasons mentioned in this piece.
"They open up a host of problems," he says. "It's not just driving, but also when your workers are out on a job site and lose control of a limb ...I advise against it, and most of the companies I do risk management for do not hire illegals."
Just as driving without a license does not prove negligence, there's not necessarily negligence when an undocumented worker is involved in a worksite accident.
"Simply being illegal is not the problem, but it adds fuel to the fire," Stamen says. "Let's say in a worst-case scenario, you wind up in trial. The contractor is going to try to keep that fact out of the trial. What bearing does it really have on whether the person was negligent or whatnot? But you can bet that the plaintiff's attorney is absolutely going to try to get that fact in front of a judge and jury. Because, for lack of a better term, it's a very juicy fact."
Correct or incorrect, the workers' illegal status might be used to support a claim that a company cuts corners in search of profit.
"You don't know if that fact is going to come into evidence or not, but you can bet someone's going to try," Stamen says.
Never miss an important safety article, subscribe to this feed!
|
