Undocumented Workers v. United States of America, IACHR, Report No. 50/16, Case 12.834, Merits (Publication)

Leopoldo Zumaya and Francisco Berumen Lizalde were both injured on the job while working without work authorization in the United States. Each sustained long-term physical damage and were denied access to compensation solely because of their immigration status. Mr. Zumaya filed a workers’ compensation claim but had to settle for a fraction of what he would have received if he had been a U.S. legal permanent resident or citizen. Mr. Lizalde was arrested and deported to Mexico – seemingly in direct response to his workers’ compensation claim – and therefore was unable to pursue it. 

A petition was submitted on their behalf with the Inter-American Commission on Human Rights (Commission), alleging violations of various articles of the American Declaration of the Rights and Duties of Man (American Declaration). In particular, they argued that discrimination on the basis of immigration status stems from the U.S. Supreme Court decision Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) – which had held that undocumented workers fired for union activities were unable to receive back pay as a remedy – and that Hoffman has been wrongly extended by U.S. state-level courts to deny protections to undocumented workers in other contexts, including access to injury compensation, freedom from discrimination, and employer liability for workplace injury, with a further consequence being the intimidation of undocumented workers to discourage use of the judicial system.

The Commission found the U.S. in violation of rights in Articles II (equality before the law) and XVI (social security) for both men. Further, it found violations of Articles XVII (recognition of judicial personality and civil rights) and XVIII (fair trial) for Mr. Lizalde. In relation to Article II, it examined the meaning of “discrimination” under human rights documents including the American Declaration, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination, as set forth by the Inter-American Court on Human Rights in its Advisory Opinion OC-18, addressing the Juridical Rights of Undocumented Workers. Whilst acknowledging that States are not obligated to provide access to employment to undocumented persons, the Commission considered it mandatory that once an employment relationship begins, the legal protections afforded to workers apply regardless of documented status. The Commission noted precedent in several U.S. states that endorse the distinction between documented and undocumented workers in terms of remedies to which those workers are entitled at least partially due to Hoffman. In this context , the Commission found that the U.S. failed to afford equal protection to all workers.

Discussing the right to social security, the Commission noted that the Charter of the Organization of American States (OAS Charter) and various other international law sources require systems which include compensation for workplace injuries and income while a worker is unable to support himself or herself. The Commission considered the workers’ compensation programs existing in the U.S. to fall within the scope of ‘social security’ as they seek to provide protections to workers during vulnerable times, but found that neither petitioner was able to access the full benefits of such programs.

The Commission also found that the U.S. violated Articles XVII and XVIII of the American Declaration with respect to Mr. Lizalde, due to the prosecution, detention and subsequent deportation initiated in seeming response to his workers’ compensation claim. The Commission considered the right to work to be one of the “civil rights” enjoyed under Article XVII, and held that a failure to provide proper remedy for workplace violations deprives workers both of the “proper conditions” owed them under the OAS Charter, and recognition of their injury under the law. Article XVIII guarantees equal access to the courts when fundamental rights are violated. While States should provide an accessible, effective legal framework to protect workers’ rights, neither petitioner had access to a full and fair hearing. The Commission found that the hurdles experienced by undocumented workers in the U.S. when they try to claim rights allow them to be exploited and discriminated against with little protection. The Commission observed that a workers’ compensation claim was not sufficient to suspend deportation, decreasing the likelihood that claims from undocumented workers will be adequately examined. 

The Commission recommended that the U.S.: provide monetary compensation; ensure all federal and state laws and policies, on their face and in practice, prohibit any and all distinctions in employment and labor rights based on immigration status and work authorization, once a person commences work as an employee; prohibit employer inquiries into the immigration status of a worker asserting his or her employment and labor rights in litigation or in administration complaints; ensure that undocumented workers are granted the same rights and remedies for violations of their rights in the workplace as documented workers; establish a procedure whereby undocumented workers involved in workers’ compensation proceedings, or their representatives, may request the suspension of their deportations until the resolution of the proceedings and the workers have received the appropriate medical treatment ordered by the presiding courts; and improve and enhance the detection of employers who violate labor rights and exploit undocumented workers and impose adequate sanctions against them.