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PERSONNEL MATTERS: Undocumented Tenn. worker can sue employer over comp filing

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By Sheena Harrison, Crain News Service

WHITEVILLE, Tenn. (Aug. 12, 2014) — Undocumented workers have the right to sue their employers if they believe they were fired in retaliation for filing a workers compensation claim, the Tennessee Court of Appeals has ruled.

Ricardo Torres worked as a convertor builder for auto supplier Precision Industries Inc. in Whiteville, court records show. In January 2011, Mr. Torres injured his back after five months on the job at Precision.

Mr. Torres, who was not legally authorized to work in the U.S. at the time, informed Precision of his injury and received treatment from an employer-selected doctor, according to court filings. Mr. Torres hired an attorney to handle his case after he faced trouble receiving workers comp for his injuries.

The man’s attorney contacted Precision in September 2012 to ask for the company’s fax number, records show. Shortly afterward, Precision’s safety manager and general manager “unprofessionally confronted” Mr. Torres about his comp claim and fired him for “lack of work,” according to records.

Mr. Torres, who gained legal work status in February 2013, filed a complaint in October 2012 in Hardeman County, Tenn., Circuit Court, alleging wrongful termination in retaliation for filing a workers comp claim and hiring an attorney, records show. He alleged that Precision management threatened him with physical harm and berated him with “expletives and unprofessional language” when confronting him about his comp claim.

Precision acknowledged in court filings that its managers “became upset” but argued that their actions were “based on legitimate and nonretaliatory reasons or factors.” The employer also argued that Mr. Torres could not assert a retaliation claim against Precision because he was not authorized to work in the U.S. and therefore was “not capable of performing the job,” records show.

The Hardeman County court dismissed Mr. Torres’ complaint, finding that an employee who “cannot show that he is capable of employment has no claim of retaliatory discharge under Tennessee law,” records show. Still, the judge’s opinion noted that the reason for Mr. Torres’ firing was a “material dispute” and that Precision likely knew of Mr. Torres’ illegal work status.

Extension of right to file comp claim

The Tennessee Court of Appeals reversed the Hardeman County court’s opinion on Aug. 5. It found that Tennessee workers have the right to file workers comp claims in the state, regardless of whether they have legal status to work in the U.S. and therefore, the court said, “the ability” of an undocumented worker “to file a retaliatory discharge is a natural extension of what is already permitted in Tennessee” under workers comp law.

“Moreover, we find that depriving unauthorized aliens of an avenue to bring a retaliatory discharge claim could potentially increase the incentive of employers to hire illegal workers that they could terminate if a workers compensation claim was filed. This defeats the goals and policies of the immigration laws and Tennessee Workers’ Compensation Act,” the ruling reads.

“It also decreases the burden on employers to provide and maintain a safe workplace, if an employer can easily escape paying workers compensation for an injury by firing an unauthorized alien employee without consequence.”

The case was remanded to Hardeman County court for further proceedings.

This report appeared on the website of Crain’s Business Insurance magazine, a Chicago-based sister publication of Tire Business.

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