New Workers Comp Laws In California

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Governor Jerry Brown had until September 30, 2018 to sign or veto any bill passed by the California Legislature. Governor Brown signed the following workers’ comp-related bills signed into law:

PEACE OFFICERS: Assembly Bill 1749

This bill provides that a California employer may accept liability for an injury sustained by a peace officer not acting under the immediate direction of his or her employer while apprehending suspected law violators, protecting life or property, or preserving the peace outside of California. This bill specifically includes any claims for injuries sustained by peace officers during the Oct. 1, 2017 mass shooting in Las Vegas, Nev. if the employer determines providing compensation serves public purposes.

FRAUD ASSESSMENT COMMISSION FUNDS: Assembly Bill 2046

This bill authorizes, instead of requires, Fraud Assessment Commission funds appropriated but not expended in the fiscal year that have not been allocated to the district attorneys, to be applied to satisfy the immediately following fiscal year minimum total amount required or to augment funding in the immediately following fiscal year.

The bill also requires an authorized government agency that is provided with workers’ comp insurance fraud-related information to release or provide that information to an authorized government agency, upon request, unless it would violate federal law or otherwise compromise an investigation. The bill also requires an authorized government agency that seeks to disclose information obtained from the Employment Development Department to any other governmental agency that is not authorized to receive that information to obtain EDD approval prior to disclosure.

LICENSED CONTRACTORS: Assembly Bill 2705

Licensed contractors are required to have a current and valid Certificate of Workers’ Compensation Insurance or Certification of Self-Insurance on file with the Contractors’ State License Board and violation of this law is a misdemeanor that must be prosecuted within 2 years. This bill makes it a misdemeanor violation for an unlicensed contractor to fail to comply with workers’ compensation insurance requirements and makes that violation subject to the two-year statute of limitations.

DISABILITY INDEMNITY PAYMENTS: Senate Bill 880

This bill authorizes an employer, with the written consent of the employee, to deposit disability indemnity payments for the employee in a prepaid card account until Jan. 1, 2023. The bill imposes certain conditions, such as allowing the employee reasonable access to in network ATMs and allowing for withdrawal and purchases without incurring fees. The bill also requires employers to provide aggregated data on their prepaid account programs to the Commission on Health and Safety and Workers’ Compensation upon request and requires CHSWC to issue a report to the Legislature on or before Dec. 1, 2022 regarding payments made to those prepaid card accounts.

PEACE OFFICERS & ACTIVE FIREFIGHTING MEMBERS: Senate Bill 1086

With respect to peace officers and active firefighting members, existing law extends the time period for commencing workers’ comp proceedings to collect death benefits from 240 weeks from the date of injury to no later than 420 weeks from the date of injury, not to exceed one year after the date of death. Pursuant to existing law, this extension of time pertains to injuries, including but not limited to cancer, tuberculosis, or blood-borne infectious diseases and is only operative until January 1, 2019. This bill removes the Jan. 1, 2019 date of repeal.

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Can An Injured Worker May be Eligible for a U-Visa?

Injured Worker Immigration U-Visa    Injured Worker Immigration U-Visa   Injured Worker Immigration U-Visa

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Can An Injured Worker May be Eligible for a U-Visa?   Injured Worker Immigration U-Visa

By Nikki Mehrpoo Jacobson
Certified Legal Specialist in Workers’ Compensation Law
by the State Bar of California Board of Legal Specialization   Injured Worker Immigration U-Visa

Can An Injured Worker May be Eligible for a U-Visa? AN INJURED WORKER MAY BE ELIGIBLE FOR LEGAL STATUS (U-VISA) IN THE UNITED STATES AND WCJs MAY HAVE AN INTEGRAL ROLE IN THE PROCESS**

(**Please note that this article is limited to the U Visa. Injured Workers may also be entitled to T Visa benefits)

The issue of “violent acts” and “catastrophic injuries” have been a hot topic of discussion ever since LC 4600.1 came into effect. Essentially, WPI increases are barred for injured workers claiming psych injuries that are compensable consequences of orthopedic injuries. However, if an exception applies, such as a “violent act” or a “catastrophic injury,” the injured worker will be able to obtain an increase in WPI, as well as medical treatment and temporary disability benefits.   Injured Worker Immigration U-Visa    Injured Worker Immigration U-Visa

Regardless of whether the applicant is eligible for WPI increases or not, what is not as well-known is that undocumented injured workers can file for legal status (U Visa) in the United States as a result of workplace related criminal activity or violence. The crime or violence does not have to be a violation of the penal code but a violation of administrative rules and regulations. This visa was specifically created to benefit victims of criminal activity or violence, including victims injured on the job. Congress has concluded that the U visa “will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute [crimes] committed against aliens, while offering protection to victims of such offense in keeping with the humanitarian interests of the United States.” Pub. L. No. 106-386, Div. B, Title V, § 1513(a)(1)(A)-(B), Oct. 28, 2000, 114 Stat. §1513(a)(2)(A) (emphasis added)

There are situations where an undocumented worker has been violently injured, victim of a crime or sexual harassment at the workplace. Unfortunately, it is common for these injured workers to refuse to file a claim when this happens, for fear they may lose their jobs, or worse, lose their families and be subject to the wrath of immigration agencies and be deported.

It is important for these injured workers to know that they are eligible to pursue benefits in both the workers’ compensation and immigration systems.

An injured worker may be eligible for a U visa by submitting a certification by a certification entity (Judges [civil, criminal, administrative judges], local law enforcement agencies, any other civil, criminal or administrative authority involved with criminal activities or civil/administrative violations, including, Department of Industrial Relations and labor code violations) that verifies that she was a victim of the criminal activity or violence and is willing , or is likely to be helpful in the investigation or prosecution of the crime committed against her. See INA § 101(a)(15)(U)(i)(III), 8 U.S.C. § 1101(a)(15)(U)(i)(III). It is crucial to note that a victim may request and receive certification despite lack of a current investigation, the filing of charges, a prosecution or a conviction.

In addition, by signing the I-918 Supplement B certification, a Workers’ Compensation judge is not granting the injured worker a visa to reside legally in the United States. To the contrary, only U.S. Citizenship and Immigration Services (“USCIS”) is authorized to issue U visas. The I-918 Supplement B certification is submitted with the U visa application and other supporting documentation to CIS for its review and ultimate determination. In addition to the certification, the victim must also satisfy USCIS that she has satisfied the requirement that she was, is, or is likely to be helpful in the investigation or prosecution of a crime.   Injured Worker Immigration U-Visa

In order for USCIS to determine if an injured worker is eligible for a U visa because he/she meets the following requirements in addition to the required certification:

  1. is a victim of one of the enumerated crimes or similar activity, includes attempt, conspiracy, or solicitation to commit any of the enumerated crimes.
  2. possesses information concerning the criminal activity.
  3. was, is, or is likely to be helpful in the investigation or prosecution of the crimes against her.
  4. has suffered substantial physical or mental abuse as a result of the crimes.

The enumerated crimes include the following:

  • Abduction
  • Abusive Sexual Contact
  • Blackmail
  • Domestic Violence
  • Extortion
  • False Imprisonment
  • Female Genital Mutilation
  • Felonious Assault
  • Fraud in Foreign Labor Contractin
  • Hostage
  • Incest
  • Involuntary Servitude
  • Kidnapping
  • Manslaughter
  • Murder
  • Obstruction of Justice
  • Peonage
  • Perjury
  • Prostitution
  • Rape
  • Sexual Assault
  • Sexual Exploitation
  • Slave Trade
  • Stalking
  • Torture
  • Trafficking
  • Witness Tampering
  • Unlawful Criminal Restraint
  • Other Related Crimes*†

*Includes any similar activity where the elements of the crime are substantially similar.
†Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes.

Not all WCJs are aware of this process, and may be reluctant to certify the request which is essential for the U-Visa application. Therefore, attorneys should carefully review the procedure for doing so:

  1. File a DOR for a status conference
  2. Alert opposing counsel as to the reason for the conference
  3. Present a mini brief at the conference explaining to the WCJ why they have authority to sign off on this certification.
  4. Prepare the certification form for the WCJ to sign.

COMMON WORKPLACE CRIMINAL ACTIVITIES:

The following are examples of common workplace criminal activities by the employer, coworkers, clients, customers or agents of the employer which can make the injured worker eligible for U Visa certification:

  • Injured worker filed a claim and/or testified about abuse or sexual assault in a court case, including WCAB and employment cases. Potential questions posed to the applicant: Did your employer post posters, drawings, pictures of a sexual nature? Did your employer make comments about clothing/appearance or make sexual jokes or comments? Look at you in a sexual manner? Did your employer ask for sexual favors, ask you to have sex with him/her, spread rumors? Did your employer touch you inappropriately? Force you to have unwanted sex?
  • A housekeeper who has been physically or mentally abused by her employer and/or deprived of her liberty by having her ID or Passport confiscated.
  • Did employer or coworker threaten violence? Did employer or coworker threaten to report applicant’s immigration status?
  • Obstruction of Justice: Attempts to influence, obstruct, or impede ANY pending proceeding through use of threats or force; Destruction, alteration, or falsification of records, including wage/hour records, birth certificates.
  • Witness Tampering: Did an employer ever intimidate or threaten applicant to delay or prevent testimony in any “official proceeding”; Alter, destroy, conceal records? Hinder, delay, or prevent communication to authorities; Threaten to damage property or cause bodily harm to delay or prevent witness participation?

LEGAL AUTHORITY & RESOURCES

  1. The application process and appropriate forms can be found USCIS website at www.uscis.gov.
  2. Judicial Council of California: Expert Guidance on Responding to U Visa and T Visa Certification Requests http://www.courts.ca.gov/documents/BTB24-PreCon1E-01.pdf
  3. New California Law on Certifications PC 679.10 U Visa Certifications – Effective January 1, 2016 https://www.ilrc.org/new-california-law-ensures-all-immigrant-crime-victims-california-can-access-u-visa

If you have further questions or inquiries about important immigration and workers’ compensation crossover issues, feel free to contact the author Nikki Mehrpoo Jacobson via email at N.Jacobson@rkmlaw.net

© 2018 by Nikki Mehrpoo Jacobson. All rights reserved

 

 

 

 

 

Nikki Jacobson, Attorney at Law
Certified Specialist, Workers’ Compensation Law
The State Bar of California Board of Legal Specialization
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Injured Worker Immigration U-Visa

Nikki Jacobson, Attorney at Law
Certified Specialist, Workers’ Compensation Law
The State Bar of California Board of Legal Specialization
Los Angeles Workers’ Compensation Lawyer
Los Angeles Work Injury Lawyer
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Workers’ Compensation Claim Was Accepted

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If my workers’ compensation claim was accepted

If my workers’ compensation claim was accepted …   You should hear whether your claim is accepted or denied from your employer or its claims administrator within 90 days from the date the claim form is given to your employer. If you do not, your injury will be presumed to be covered.

What benefits am I entitled to?

Workers’ compensation insurance provides five basic benefits:

What if I have a disagreement about my benefits?

At some point during your claim, you or the claims administrator might disagree with what your treating physician reports about your injury. When there is a disagreement, you may be evaluated by a qualified medical evaluator (QME). To qualify as a QME, a physician must meet additional educational and licensing requirements. They must also pass a test and participate in ongoing education on the workers’ compensation evaluation process. If you have an attorney, your attorney and your claims administrator might agree on a doctor to resolve medical disputes. This doctor is called an agreed medical evaluator (AME).

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I was injured at work

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I was injured at work…

I was injured at work. Now What? Workers’ compensation benefits are designed to provide you with the medical treatment you need to recover from your work related injury or illness, partially replace the wages you lose while you are recovering, and help you return to work. Workers’ compensation benefits do not include damages for pain and suffering or punitive damages. Benefits include:  medical care, temporary disability payments, permanent disability payments, Supplemental Job Displacement Vouchers and return to work benefits.

Report the injury or illness to your employer

Make sure your supervisor is notified of your injury as soon as possible. If your injury or illness developed gradually, report it as soon as you learn or believe it was caused by your job. Reporting promptly helps avoid problems and delays in receiving benefits, including medical care. If you don’t report your injury within 30 days, you could lose your right to receive workers’ compensation benefits.  Some injuries are obvious and some are not.  Any physical or psychological injury as a result of your work duties may an industrial injury.  Consult with an attorney who is a workers’ compensation specialist.

Get emergency treatment if needed

If it’s an emergency, call 911 or go to an emergency room right away. Tell the medical staff that your injury or illness is job-related. If you can safely do so, contact your employer for further instructions.

If you don’t need emergency treatment, make sure you get first aid and see a doctor if necessary.

What’s next?

Once you file a claim, your employer is required to provide you with medical care.

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U Visa & Injured Workers

Workplace Violence - U Visa - Victim of a Crime - Immigration

Have you been injured at work because of your employer? U Visa

Have you been injured at work because of a fellow employee?

Have you been injured at work because of a violent act?

Have you been injured at work because of any criminal activity?

If you answered YES, to any of the above, you may be eligible for immigration status, a work permit and may be allowed to become a lawful permanent resident in the U.S.  

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Introduction:  The U Visa and How It Can Protect Immigrant Injured Workers

How am I eligible for a U Visa if I was injured at work?  In the workplace, employees can often be victims of:

  • employer exploitation;
  • violations of wage and hour laws;
  • violations of equal employment protections;
  • harassment
  • physical, emotional, psychological or sexual abuse; and
  • many other fact based problematic issues.

In certain circumstance, any of the above instances may rise to the level of criminal activity.  In those situations, depending on the crime and other factors, workers may be eligible for a U nonimmigrant visa which may also lead to lawful permanent residence (green card) in the United States.

Employees who resist to report criminal activity to law enforcement because of the fear employer retaliation, being targeted for lack of a current lawful status or being terminated.   However, employees can be empowered to improve their workplace circumstances and conditions with the possibility of U visa protections and relief if they are willing to assist law enforcement.

A U visa may be particularly useful for situations where an employer uses workers’ immigration status to deny them what they legally should be earning, to deny them a workplace that complies with legal safety requirements, or to use their position of power to commit sexual or violent crimes against workers.

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What Is the U Visa’s Purpose?

Congress created the U nonimmigrant visa in 2000 when it passed the Victims of Trafficking and Violence Protection Act.  Its purpose was to encourage immigrants to report crimes to law enforcement and also to afford protection for those willing to cooperate.  Congress intended that the law would protect victims of domestic and other violent crimes, but it also explicitly expressed its intent that the visa protect against qualifying workplace-related crimes.

 

What Are the Benefits of the U Visa?

U visa status benefits include the following:

  • Lawful status for up to four years;
  • Work authorization;
  • Derivative benefits for qualifying family members; and
  • Eligibility to adjust status to a lawful permanent resident after three years.

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When Is a Worker Eligible for a U Visa?

To be eligible for a U visa, a worker must meet the following criteria:

  1. The worker has suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity;
  2. The worker has information about the criminal activity;
  3. The worker has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime; and
  4. The criminal activity violated local, state, or federal law, or occurred in the U.S.

 

What Is the U Visa Petition Process?

To apply for a U visa, the worker or someone on the worker’s behalf must complete the following:

  • Form I-918, Petition for U Nonimmigrant Status.This form requests biographical information about the worker, the worker’s family members, and additional questions to determine the worker’s eligibility. The form is available at USCIS.gov.
  • Form I-918, Supplement A, Evidence to Establish Derivative U Nonimmigrant Status. This supplement is optional for petitioners who wish to petition for qualifying family members.  A separate Supplement A must be completed for each qualifying family member the worker wishes to file for.  If the worker is under age 21, qualifying family members include siblings under 18, the worker’s spouse, parents, and any children.  Workers above age 21 cannot petition for their parents or siblings, but may petition for their spouse and children.
  • Form I-918, Supplement B, U Nonimmigrant Status Certification. This supplement is a mandatory certification form that must be completed by a government entity with authority to certify U visas.  That entity must certify that the petitioner is a victim of one of the categories of qualifying criminal activities; has knowledge of the activity; and has helped, is currently helping, or is likely to help in the investigation or prosecution of the crime.
  • Supplemental Evidence. The worker must include a personal statement that provides a narrative of the crimes of which the worker is a victim and information about any resulting injuries.  The worker also should submit evidence, including affidavits, doctors’ reports, psychiatric evaluations, therapy session notes, court documents, police reports, or anything else that supports the worker’s claim.

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Which Government Entities Have Certifying Authority?

A number of government entities have the authority to certify U visas, including federal, state, or local law enforcement agencies, prosecutors, judges, or other authorities with responsibility for the investigation or prosecution of qualifying criminal activities.  Also included in that list are federal, state and local agencies that enforce employment and labor laws, such as the U.S. Department of Labor, the Equal Employment Opportunity Commission, and the National Labor Relations Board.

Since the U visa is a relatively new visa, there is considerable confusion among government agencies regarding certifying authority and the identification of qualifying criminal activity.  It is important to note, when working with an agency, that U.S. Citizenship and Immigration Services (USCIS) regulations permit U visa certification on the basis of a crime that is detected, even if the certifying agency has no authority to enforce that crime.  This was partly to further Congress’s “[intent] for individuals to be eligible for U nonimmigrant status at the very early stages of an investigation.”

  

What Constitutes Qualifying Criminal Activity?

The following is a list of criminal behaviors that were recognized as ones that are often directed against immigrants and that therefore constitute qualifying criminal activity for purposes of U visa eligibility.  The list includes categories of federal, state, or local criminal violations, and it attempts to paint the picture of the variety of activities that may qualify.

There are a few important points to note before reviewing this list:

  1. The list names different categories of crime but is not exhaustive.  Other crimes substantially similar to the listed crimes may also qualify.
  2. “Investigation or prosecution” of a crime includes the detection or investigation of a qualifying crime or criminal activity, as well as prosecution, conviction, or sentencing of the perpetrator of such crime or criminal activity.  USCIS intended this term to be interpreted broadly. Similarly, labor enforcement agencies are permitted to certify U visas on the basis of qualifying criminal activity they detect, even if they lack the authority to prosecute it.

 

LIST OF CRIMINAL BEHAVIORS

  • Abduction
  • Abusive Sexual Contact
  • Blackmail
  • Domestic Violence
  • Extortion
  • False Imprisonment
  • Felonious Assault
  • Female Genital Mutilation
  • Felonious Assault
  • Being Held Hostage
  • Incest
  • Involuntary Servitude
  • Kidnapping
  • Manslaughter
  • Murder
  • Obstruction of Justice
  • Peonage
  • Perjury
  • Prostitution
  • Rape
  • Sexual Assault
  • Sexual Exploitation
  • Slave Trade
  • Torture
  • Trafficking
  • Witness Tampering
  • Unlawful Criminal Restraint
  • Other Related Crimes

Includes any similar activity where the elements of the crime are substantially similar.

Also includes attempt, conspiracy, or solicitation to commit any of the above, and other related, crimes.

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Qualifying Criminal Activities Commonly Seen in the Workplace

Any of the criminal activity listed in the VTVPA could qualify a worker for a U visa, but the qualifying criminal activities that would be most likely to be found in the workplace are these:

  • Blackmail:An example would be an employer threatening to report a worker’s immigration status to induce the worker to give up money or something of value.
  • Trafficking:This includes recruiting, enticing, harboring, or transporting another person for labor purposes.
  • False imprisonment:Examples include chaining or locking doors and fences to keep workers inside.
  • Involuntary servitude:Defined in 22 U.S.C. § 7102(5) as a condition of servitude induced by means of: (A) any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraint; or (B) the abuse or threatened abuse of the legal process. Examples include threatening harm to the worker if he or she does not continue to work, confiscating passports or other identity documents, using locks or fences to keep workers from leaving the premises, and keeping workers in locations that restrict food, housing, medical care, clothing, and other basic necessities.
  • Obstruction of justice:Examples include destroying, altering, or falsifying wage or work hours records or birth certificates (e.g. to fake a minor’s age).
  • Peonage:Telling a worker that he owes $10,000 for tools and supplies, deducting most or all of a worker’s wages to pay for the debt, and compelling the worker to continue working until the debt is paid off, for example, would constitute peonage.
  • Witness tampering:Threatening or intimidating a witness.
  • Fraud in foreign labor contracting:This is when someone “Knowingly and with intent to defraud, recruits, solicits, or hires a person outside the United States…For purposes of employment in the United States by means of materially false or fraudulent pretenses, representations or promises regarding that employment…” (8 U.S.C. § 1351.)

Notice that some commonly seen workplaces abuses, such as wage theft, employment discrimination, and collective bargaining violations, are not listed.  Making a good argument that the crime committed against you is similar to one of the listed U visa crimes is crucial, and it is where an experienced attorney can come in very handy. A collective bargaining violation may turn into an obstruction of justice or witness tampering case if the employer threatens to call immigration, or fire an employee, if the employee continues to participate in strikes and protests over the poor working conditions.

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