Tennessee’s workers’ compensation statute allows injured workers to recoup benefits regardless of whether they are lawfully employed. In a recent case, a West Tennessee federal district court considered whether an undocumented immigrant could file a lawsuit against his former employer, whom he claims fired him in retaliation for pursuing workers’ comp.
Born in Mexico, Ricardo Torres moved to the United States without documentation in 1997. Later, he applied for a job with Precision Industries, Inc., a small company in Whiteville. When he applied for the job at Precision, he gave a false Social Security number (SSN). Precision hired him in early 2011 without realizing he was an undocumented immigrant.
Precision claimed it learned in early 2012 that Tennessee law required employers to review all of their employees’ documentation by 2013 to ensure they were lawfully authorized to work in the United States. Precision planned to undertake the review in November 2012. In the meantime, Torres was injured on the job and sought workers’ compensation.
Precision fired Torres in September 2012. It’s unclear why he was fired, but Precision denied knowing his true immigration status at the time he was fired. The company fired four other employees in April 2013 after they didn’t return to work with completed I-9 forms.
Torres claimed that Precision fired him in retaliation for his workers’ comp claim—which is illegal in Tennessee. He then sued his former employer in West Tennessee federal court for retaliatory discharge. He also alleged that Precision knew at the time it hired him that he was an undocumented immigrant.
Following a trial, the federal district court concluded that Torres wasn’t entitled to any relief because he wasn’t legally authorized to work in the United States. The court noted that if only Tennessee state law applied, Torres could obtain relief. Indeed, Tennessee workers’ compensation law defines a covered employee as including anyone “lawfully or unlawfully employed.” Therefore, immigration status doesn’t matter under state law if an employee is seeking workers’ comp or suing his employer for firing him in retaliation for seeking workers’ comp.
Unfortunately for Torres, however, the court found that federal law came into play in his case. In its 2002 Hoffman Plastic decision, the U.S. Supreme Court found that the National Labor Relations Board (NLRB) erred when it awarded back pay to an undocumented worker because such a ruling runs counter to policies embedded in the federal Immigration Reform and Control Act (IRCA). The Supreme Court concluded that the NLRB’s decision “not only trivializes the immigration laws, [but] it also condones and encourages future violations.”
Although some courts have expressed skepticism about extending Hoffman Plastic to other contexts, the U.S. District Court for the Western District of Tennessee found that the Supreme Court’s ruling applied in Torres’ case. The court observed that IRCA supersedes Tennessee law and allowing undocumented workers to freely sue their employers for retaliatory discharge would contravene the Act’s purpose.
Nonetheless, the Tennessee court found that undocumented immigrants may still pursue legal relief if they can prove their employer was aware of their immigration status. According to the court:
Limiting Hoffman’s applicability to employers that are unaware of their employees’ immigration status serves a dual purpose. First, it alleviates concerns that an employer might abuse immigration policy by knowingly hiring individuals unauthorized to work in the United States with the intent of avoiding certain liabilities down the road. And second, it maintains a consistency with federal immigration policy by ensuring that employers do not profit from their own violations of IRCA.
At trial, Torres testified that Precision was aware of his status as an undocumented immigrant at the outset of his employment, and it knew he had provided a fake SSN. Precision denied that. In assessing the credibility of the witnesses, the court found that Precision’s witnesses were more believable. Consequently, the court found that Torres’ claims should be dismissed.
Interestingly, the court also suggested that IRCA should override Tennessee workers’ compensation law to prevent undocumented immigrants from obtaining workers’ comp benefits. According to the court, “If IRCA prohibits the award of [back pay] for an employer’s retaliatory discharge of an illegal immigrant under the [National Labor Relations Act (NLRA)] in order to avoid incentivizing illegal immigration, then would it not prohibit the State of Tennessee from mandating the provision of workers’ compensation benefits to an illegal immigrant for the same reason?” Torres v. Precision Industries, Inc., 2018 WL 3474088 (W.D. Tenn., July 19, 2018).
Immigration has been at the forefront of the Trump administration’s policy objectives, and employers are seeing significant increases in worksite compliance actions by U.S. Immigration and Customs Enforcement (ICE). Undocumented workers have been under pressure from many different sources, making life in the United States increasingly difficult for them. This judicial decision will add to the pressure they are certainly feeling by denying them the protections afforded to their coworkers with proper documentation.
Based on the federal court’s decision, undocumented workers’ ability to obtain workers’ comp is also seriously in question. In light of current political sentiments, it wouldn’t be surprising if the Tennessee Legislature intervened to amend the statute so that it explicitly indicates unlawfully employed workers are not entitled to workers’ comp. However, the immunity defense would be available only to employers that keep their hands clean and don’t have reason to know that a worker is unauthorized.
This case will bolster Tennessee employers’ ability to argue that they’re immune from suit by undocumented workers, but it may not be the end of the story, and it shouldn’t give you a false sense of security. Torres could be successful on appeal, or other courts could rule differently. The court’s ruling in this case came down to a credibility determination during a trial that was surely expensive.
Not only will employers complicit in hiring undocumented workers find themselves targeted by ICE and other authorities, but they may also be at risk of a traditional employment lawsuit filed by an undocumented worker. In this era of more aggressive immigration enforcement, you should remain vigilant to ensure that your hiring practices comply with federal and state immigration law. Violators may be subject to significant liability, including in some egregious cases, personal criminal liability for the hiring manager.
David Johnson is a partner in Butler Snow’s labor and employment practice group in the Nashville office. He may be reached at firstname.lastname@example.org. Todd Photopulos is an attorney in Butler Snow’s Memphis office. He can be reached at email@example.com.