MA: Immigrant Workers and Labor Advocates Push for Bill to Protect Employees from Retaliation After Workplace Injury
Boston, MA (WorkersCompensation.com) - Labor advocates and immigrant workers gathered at the State House today for a public hearing to demand the passage of An Act Protecting Injured Workers (SD1182/HD2947), a bill that contains badly needed reforms to the state's workers' compensation program to limit an employers' ability to bully workers out of their rights.
Workers' compensation benefits are crucial for employees injured on the job, providing them with medical care and wage loss benefits when they are unable to work due to a work-related injury or illness. In exchange for losing the right to sue their employer after an injury/illness, the over a century-old program allows workers to receive benefits and medical care after being hurt or made ill on the job.
The Immigrant Worker Center Collaborative (IWCC), a coalition of immigrant labor advocates, held a rally before heading to testify at the hearing. Sponsors of the bill, Senator Eldridge and Representative Tram Nguyen joined the crowd, as well as John Drinkwater of the Massachusetts AFL-CIO.
Advocates say that too many workers face retaliation for seeking their right to care, resulting in workers avoiding filing for workers' compensation. Currently, the law leaves workers largely unprotected when employers retaliate against employees in an attempt to prevent them from reporting a workplace injury, acquiring medical care, or filing a workers' compensation claim. Unscrupulous employers, especially those who are operating in the underground economy, have a strong incentive to deter workers from reporting injuries or filing workers' compensation claims because they face severe consequences for their violations of the law if they are exposed.
Current state law protecting workers from these harassment tactics is extremely weak. The law governing retaliation under the workers' compensation law, M.G.L. c. 152, s. 75B(2), has a narrow definition of retaliation. The only avenue for relief is to file an expensive lawsuit in Superior Court where the remedies are extremely narrow, and no compensatory damages are available.
East Boston resident Maria [her name has been changed to protect her identity] submitted testimony regarding the retaliation she faced as a domestic worker.
“My employer never had personal protective equipment like gloves and did not buy gloves, we had to do the cleaning work without it,” reports Maria. “I had to put my hands in the toilet without gloves and forced us to work without shoes so we don't dirty the floor. I had to do heavy lifting of cans filled with very heavy garbage, which caused a hernia in my stomach. I started to feel a pain as if something pulled me inside until I got a ball in the stomach and in the end I went to the doctor and he told me it was a hernia and that I had to have an operation. When I told this to my boss she told me not to dare to say that it was caused by work. And if I dare to say something she was going to call immigration and it was going to send me back to my country. From that moment she began to behave worse with me, she treated me very badly giving me more work and making feel like I don't deserve any medical attention because of my status.”
Due to intimidation, Maria never filed for benefits, but instead sought care that she and taxpayers paid for. In 2017, more than 65,000 workers suffered a work-related injury in Massachusetts that required medical treatment. Because of the weaknesses in state laws, employers now provide, on average, only about 21 percent of the $198 billion estimated annual cost of occupational injuries, illnesses, and fatalities. By intimidating Maria out of her right to care, her employer was also able to continue to undercut those in the domestic worker industry that follow the rules and create good jobs.
“Every day at the Brazilian Worker Center we meet honest, responsible men and women who work hard to earn their pay so they can provide for their families,” testified Dr. Natalícia Tracy, Executive Director of the Brazilian Workers Center. “All too often, however, when they become victims of accidents on the job, our laws do little to protect them or help them recover from their injuries. The injured worker bill will give workers deserved protections they lack today due to gaps in current law.”
Seven additional workers provided testimony to highlight the hidden retaliation they faced from their employers when seeking benefits after being hurt on the job. Given the national anti-immigrant mentality, their bravery publicly speaking out highlights the role immigrant workers are playing in protecting all Massachusetts workers from such abuse. Legal experts also testified that unlike neighboring states such as Connecticut, no Massachusetts agency has any power or ability to investigate retaliation complaints, leaving hurt or ill workers in fear, confusion, and pain.
Susan Woodrow, a Brown University educated teacher testified what happened when she fell and shattered her femur at an elite private school.
“At the time I was most vulnerable, my employer intentionally mischaracterized my accident, blocked the support and delayed the care that was reasonable due to me. I ask you to recognize the damage that such misconduct can do, and to see what this can happen to anyone.”
With only the option of going to Superior Court for limited remedies, it is not surprising that workers like Maria and Susan have effectively no option for holding employers accountable for retaliation or to deter retaliatory behavior. As a result, low-wage workers are far more fearful of the consequences of reporting an injury or seeking medical care than their employers are of taking retaliatory action to stop workers from doing so.
“Deportations and threats to do so have always happened, but the political environment now has really seemed to empower bad employers to do whatever they want to harass immigrant workers,” said Milagros Barreto, Worker Center Director for the Massachusetts Coalition for Occupational Safety and Health, an IWCC member. “After telling IWCC members and volunteers what the bill would do, they decided that it would be something they would support as best as they can to help all workers.”
An Act Protecting Injured Workers strengthens anti-retaliation law, finally providing an administrative complaint and investigation mechanism for enforcement, and clearly addresses the types of employer misconduct that prevents workers from receiving timely medical care and benefits. The bill does so by: • Ensuring that workers are protected when they engage in a comprehensive range of activities to assert their rights. • Clarifying the prohibited types of employer misconduct, retaliation, and other efforts to deprive workers of their workers' compensation rights. • Providing workers with an option for an administrative investigation and resolution of retaliation complaints, using the existing structures at the Massachusetts Commission Against Discrimination. • Ensuring that workers are able to obtain appropriate remedies and relief for the harm caused by employer retaliation.
"This bill is a major step forward in providing injured workers access to benefits they are legally due and preventing injured workers and their families from falling into poverty due to a work-related injury," testified Deborah Berkowitz, Safety and Health Program Director of the National Employment Law Project. "This bill will go a long way to assure that tens of thousands of Massachusetts workers injured on the job will have access to the benefits they are entitled to under the workers' compensation law, so they can recover and rejoin the workforce."
“Each provision of this bill, including the critical establishment of a state investigative and prosecutorial role, sends a strong message to employers who are inclined to deprive their workers of the compensation they're entitled to,” testified Michael Felsen, former U.S. Department of Labor New England Solicitor from 2010 to 2018. “That message is we, the Commonwealth of Massachusetts, take workers' rights compensation for injuries on the job seriously. If you fail to do likewise, if you seek to intimidate, if you retaliate, you do so at your own peril."
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