In Bollinger Shipyards, Inc. v. Director, Office of Worker’s Compensation Programs, U.S. Dept. of Labor, (5th Cir. 2010) the United States Fifth Circuit upheld the award of workers compensation benefits to an undocumented immigrant worker who was injured on the job as a pipefitter.
The Bollinger plaintiff, Jorge Rodriguez, fell and allegedly injured himself while welding for his employer, Bollinger Shipyards, Inc. At the time of his alleged injury, Rodriguez had been working for Bollinger for approximately eight months, having initially obtained employment by falsely holding himself out as a United States citizen. Rodriguez presented Bollinger with a false Social Security Card. Bollinger initially paid Rodriguez temporary disability benefits and reimbursed him for a portion of his medical bills.
Two years later, however, Bollinger terminated all payments after discovering that Rodriguez was an undocumented immigrant. Rodriguez then filed for benefits under the LHWCA and the case proceeded to an administrative hearing. The ALJ ruled in favor of Rodriguez on all issues, concluding that he was unable to work and that he was not at maximum medical improvement. The ALJ also held that undocumented workers, such as Rodriguez, were indeed eligible for benefits. Bollinger appealed the ALJ’s ruling to the Benefit Review Board; however, the BRB affirmed. Thereafter, Bollinger appealed to the Fifth Circuit.
The primary question on appeal was whether an undocumented immigrant could be eligible for benefits under the LHWCA. Bollinger argued that Rodriguez’s injury caused him no loss of wage earning capacity because he had no legal wage earning capacity at the time he was injured. As such, Bollinger argued that Rodriguez was per se ineligible under the Act. Bollinger further argued that the Benefit Review Board’s ruling undermined the Congressional policies embedded in the Immigration Reform and Control Act of 1986. Bollinger relied on a line of Supreme Court cases, including Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), which made the distinction as to whether wages could be paid legally in declining to award some types of relief under the NLRA in order to avoid a conflict with the immigration laws, which prohibit the employment of aliens who enter or remain in the country illegally and which also criminalizes the use of false documentation to obtain work.
The Director, OWCP and several amici curiae filed briefs in support of Rodriguez’s eligibility for benefits under the LHWCA, arguing that failing to require workers’ compensation for immigrant workers encourages employers to hire undocumented workers. The Fifth Circuit reviewed the statutory language of the LHWCA and concluded that the statute provides coverage to undocumented immigrants. The Court found the precise language of §909(g) persuasive. Section 909 (g) states that “[c]ompensation under the [the LHWCA] to aliens not residents (or about to become nonresidents) of the United States or Canada shall be the same in amount as provided for residents.” The Fifth Circuit noted that other courts, have concluded that the unmodified term “alien” encompasses both documented and undocumented immigrants. The court noted that compensation under the LHWCA is a non-discretionary statutory remedy. Unlike the NLRA, the LHWCA is a substitute for tort law, abrogating fault of either the employer or the employee. Further, the court held that awarding death or disability benefits post hoc to an undocumented immigrant under the LHWCA does not “unduly trench upon” the IRCA, because Congress chose to include a provision in the LHWCA expressly authorizing the award of benefits.
Finally, the court held that Fifth Circuit precedent has been that undocumented immigrants are eligible under the LHWCA, citing Hernandez v. M/V Rajaan, 841 F.2d 582, amended after rehearing, 848 F.2d 498 (5th Cir. 1988), the court held that Rodriguez was entitled to benefits because Bollinger failed to provide any evidence that Rodriguez was “about to be deported or would surely be deported.” The court also found persuasive the D.C. Circuit’s opinion in Rivera v. United Masonry, Inc., 948 F.2d 774, 775 (D.C. Cir. 1991), in which the court declined to take into consideration an immigrants undocumented status when determining his eligibility for benefits.
Bollinger filed a petition for review which was denied in all respects. (5th Cir. April 22, 2010). Although the Fifth Circuit seems to have made it clear that undocumented immigrant will remain eligible for benefits under the LHWCA, the court left open the possibility that an alien who was about to be deported or was sure to be deported might not be eligible for future lost wage benefits calculated as they would be earned in the U.S.