Podcast featuring attorney Javier Grajeda: Undocumented Workers and the Special Challenges They Face
Jud Pierce: Welcome back, everyone. We are pleased to have our next guest with us, Javier Grajeda. Welcome, Javier, to our program.
Just a brief background on you. You are a graduate of UC Berkeley and also a graduate of the Sandra Day O’Connor Law School at the University of Arizona. You are licensed in your state to represent injured workers, and you’ve been doing so for 12 years now, correct?
Javier Grajeda: That is correct. Time flies. And thank you very much for having me today.
Jud Pierce: It’s our pleasure. We were just discussing with your colleague, Bob Wisniewski, his experiences with interpreters in workers’ comp cases. We’d like to get into your experiences in representing immigrants who’ve been hurt on the job and undocumented workers. Just briefly, can you describe for us how you arrived in this course of study and practice of law?
Javier Grajeda: Growing up, my dad had a landscaping business. He worked for a lot of individuals that were lawyers. After I graduated from UC Berkeley, one of his clients, who was a work comp lawyer in California, he asked me to come work for him as a clerk, as a paralegal. That was my first dip in the pond in workers’ compensation.
When I went to law school, I actually wanted to practice employment law, represent individuals, not companies. During my first summer of law school, I applied to law firms all over the city of Phoenix. A workers’ compensation firm hired me on, and they kept letting me come back. I learned a lot once I finished law school, and then they offered me a position.
I had the opportunity to learn from about ten different lawyers, so it was a really good experience. That’s what I became good at, I suppose. So, here I am.
Jud Pierce: It’s a great experience in terms of our practice here. I know Alan and myself, we’ve been doing this for a while and representing individuals. And their stories are all so very different.
In your experience, what has been the common element in terms of representing undocumented workers in Arizona? What are the trials and tribulations that you’ve experienced doing that?
Javier Grajeda: I think the biggest challenge right off the bat is these undocumented workers do not believe that they have any rights. That’s not the case. Here in Arizona, undocumented workers are considered employees for the purposes of workers’ compensation benefits. That’s one big hurdle that we need to get past.
And that just has such an impact on an individual’s claim because, as you and Alan know, time is of the essence in these claims, whether it’s reporting, whether it’s getting treatment. These individuals just don’t know any better, and sometimes that’s a cultural issue.
I’m of Mexican background. A lot of the individuals that I represent that are undocumented or immigrants are of Latin American descent. In our community, we rely upon many of the people that we know and their experiences, so it’s hard for an attorney to really break through those barriers of the community and have the client listen to us.
Jud Pierce: You mentioned, Javier, that there is an unawareness of their rights. What about the fear factor? Their immigration status and the fear of bringing a claim that would either involve retribution, retaliation or, at worst, detention, deportment, etc.?
Javier Grajeda: It’s a very credible fear that these workers have once they’re injured. You need to remember that a lot of immigrants in our country are not high‑skilled immigrants. They are of lower education, lower skilled. So when they get hurt, they have a decision to make. Do I report this to my employer and risk being fired? Risk being called on by the authorities, the immigration authorities? Or do I keep working because I need to sustain my family, provide for them? In many cases, they’re the sole breadwinner.
These are the same challenges that workers who are documented or who are born here in the United States face, but there’s just this other level of fear that really prevents people from going forward.
It’s unfortunate, but when we do consult with someone and when I consult with someone, I really do have to counsel them to say, “Look, this is in your best interest to go forward. My job is to reassure you and to get you the benefits that we think that you’re entitled to.”
Jud Pierce: It’s troubling because in Massachusetts, there’s obviously the statute of limitations which is a little bit liberal. It’s 4 years here in Mass, it’s 1 year in Arizona, right, to bring a claim or announce that you are going to bring a claim. Correct?
Javier Grajeda: Correct. It’s a year from when you knew or should have known that you had an injury that was a result of your work activities. That has to be filed with the Industrial Commission of Arizona.
Unfortunately, many of my immigrant workers and non‑immigrant workers, they feel that by reporting it to their employer, that they’ve done what they needed to do. Sometimes, unfortunately, I’ve seen them miss the statute after a year because they didn’t take the proper administrative step to file their claim.
Jud Pierce: So the employer wouldn’t then take it and report it themselves? That it’s really on the employee?
Javier Grajeda: It’s really on the employee. The employer will report it to their insurance carrier. Oftentimes, when an individual does go to seek medical care, the medical provider can also file the claim for them. So sometimes, some people luck out that way because whoever they’re presented to knows that administrative process.
That’s always one of the things that I look for immediately when I’m representing someone that’s Spanish‑speaking or an immigrant is have they missed that deadline. Let’s find out right away. It’s just so important.
Jud Pierce: I know some of the problems we’ve encountered representing workers with questionable immigration status, they may be in some kind of gray area. There are some undocumented workers who nevertheless have a federal ID number and, in fact, do pay taxes, or others that are much deeper under the radar. In those particular cases, maybe you could comment on simple things that we may not necessarily think of, like their actual name, their actual social security number or identification number, for purposes of obtaining medical records and other things that you might need to prepare a case that might have an entirely different name or fictitious social security number, even date of birth to identify these folks.
Some of them, I think, are really in the ether in terms of being able to establish who they are and how they have obtained their medical treatment.
Javier Grajeda: That’s a really great observation, and it’s such a good question that has multiple layers to it.
We have to remember that there are individuals that come here lawfully to the United States, whether it be on a visitor’s visa, a work visa. For some reason or other, they overstay that, and now they are out of status, so to speak.
That doesn’t mean that they … a lot of people like to use the term “illegal.” They picture someone crossing the border without authorization. That’s really just not the case for everyone.
In my experience with undocumented workers, they’ve been told to get a federal identification number for tax purposes because they want to do the right thing. They want to pay their taxes. Some employers do take that as a method of taking out payroll taxes and social security taxes.
As you know, undocumented immigrants are not entitled to social security benefits, so they’re really contributing to a system that they’re not part of, which is really unfortunate even though they’re doing the right thing in their minds.
It’s really helpful for us when they do have a federal tax ID number because it allows us to find the information that we need to calculate the appropriate benefits they’re entitled to under workers’ compensation.
The biggest issue that you brought up in that question was the identity of the person. Most people do use the identity of someone else, and that’s problematic as an attorney for a couple of reasons. One, I’ve always felt that you start off on the wrong foot with either the claims adjuster or an administrative law judge because the person has already told a non‑truth about themselves. They aren’t Marco Jimenez. They are Juan Garcia.
That always has made me uncomfortable. But, in my practice, I always use the person’s actual name and then do an ‘also known as’ and then their working name. Because if we do have a litigated case, people at the job know them by the work name, not the actual name.
So it does create some problems within the claims processing before a judge, just generally, but most importantly, for us, when we do request medical records, you’re right. It might be under the wrong name with the wrong date of birth. It just complicates things for us.
Again, that’s another thing that people do because they’re scared. They go to the hospital, and they may not use their real name for fear of some type of retribution.
Alan Pierce: Now, taking this one step further, and perhaps you could share with us whether you’ve had these experiences, Arizona being a border state and a lot, if not the vast majority, of your clients have fit into this category from Mexico, what happens when after the injury they go back to Mexico either for treatment, recuperation or just move back there? How do you prove their case with them of being out of the country? Do you have the availability to do this now electronically over a medium, such as Zoom? Or are they, as they say, just out of luck, because they can’t come back here?
Javier Grajeda: That’s a really good question. Let me give you two examples.
The first example, I had an individual who was working here. They got hurt. They were doing their treatment, but they lived in a border city here in Arizona, and they were able to go back and forth between Mexico and Arizona. How? I don’t know. I’d leave that to them.
But when the pandemic began, he couldn’t come across because of whatever rules we had. He was able to do his treatment via Zoom with the doctors, and that helped, but it clearly wasn’t the ideal situation because the doctors couldn’t really evaluate him properly.
We were able to reach a settlement in that case because he just said, “I can’t go back. I’m done. I’ll figure it out here in Arizona.”
I had a colleague of mine who represented someone that was deported in the middle of a claim. It was a fairly straightforward injury, and the carrier wanted to bring that individual back for an independent medical examination. Obviously, the person could not come back because they were undocumented and didn’t have the ability to do so since they had already been deported.
So there was an issue involving, well, what do you do now? Do you force the carrier to send a doctor to Mexico to do an evaluation? Do you get an evaluation from a Mexico doctor that is familiar with workers’ compensation? What do you do?
It creates challenges not only for the injured worker but also for the carrier who wants to try to do the right thing and move the claim along.
Jud Pierce: Basically, this type of law is rife with conundrums, really, right between the states being allowed to create their own state workers’ compensation systems and their federal government and what its limitations are. What types of back and forth have you had with that in your practice, between the federal law and state laws?
Javier Grajeda: I had one interesting situation where I had a gentleman who was here on a work visa, got hurt and he needed to continue to get his treatment before the visa expired. Obviously, I wanted him to continue to treat so that he could try to get better and, when he would have to leave, he’d be in a healthy position to leave.
But, at that point, I needed to get the guidance of an immigration attorney. I think as a workers’ compensation practitioner here in a border state, that’s something that I need to have available before some type of visa expires.
That individual who helped me with that claim was able to get an extension of the visa because there was a legitimate reason, the continuation of medical care. And they had to prove and show that they weren’t going to be a ward in the United States, and we had to explain how this individual was going to get treatment and benefits.
So it comes up a lot, but it’s really incumbent on my clients to tell me. Because if I don’t know that they’re having some kind of issue, I can’t really help them. I always try to ask but, as you know, unfortunately, sometimes clients don’t share everything with us.
Alan Pierce: Another question that I have, because it has come up from time to time, is, as you know, one of the benefits of workers’ comp, other than wage replacement and medical, is vocational retraining of vocational rehabilitation. That is obviously a goal to get the person with a permanent impairment able to return to work in another type of job, notwithstanding that impairment.
Where the underlying worker being undocumented is not legally allowed to work in the United States, do the insurers provide vocational rehab? If so, what do they provide, and how do they get around the prescription against employment and try to retrain somebody to do a job that they could not do in this country if they were retrained?
Javier Grajeda: Here in Arizona, the carriers don’t provide vocational rehabilitation. It’s through a rehabilitation unit at our Industrial Commission of Arizona and with individuals that are documented and have the ability to work in Arizona.
I’ve had successful cases where individuals have finished their GED, they’ve gotten a computer science degree, they’ve returned to be x-ray technicians. Unfortunately for my non‑English speaking, undocumented workers, it’s usually limited to, “Let’s teach you English so that you can have that skill.”
I think that by limiting that training to just English, it’s an acceptance of the reality. If you learn English, you can go out and find a job somewhere doing something, whether or not you were able to legally work in the United States.
I think that many immigrants are very resilient and resourceful individuals. I think many of them do go out and find something through word of mouth of a friend or a family member. But it’s unfortunate that the vocational rehabilitation program here in Arizona isn’t more robust, because I think that it really leaves these injured workers in a bad place, especially if the goal of workers’ compensation is to get people back to work, if they’re able to, and to be productive members of society. Just because they’re undocumented or don’t have a number to work with doesn’t mean that they still can’t be productive members in our society.
I was looking at some information from the Center of Immigration Studies. They’re a non‑partisan group that does immigration research. As of 2021, in November, there were 46 million immigrant individuals in the United States. And as of January of this year, there were 11 million undocumented individuals here in the United States. That’s an estimate, but that’s a lot of people. It’s a lot of people that are trying to do the right thing, in most cases, by working when they get hurt.
So even if they are hurt, they still have value to us and to our economy and to our communities. So it would be great if there would be a way to expand that vocational training for them.
Alan Pierce: I couldn’t agree more. Jud.
Jud Pierce: Yeah. I just wanted to thank you, before we close, just for your personal commitment in representing injured workers the way you do, and equality. It shines through.
I’ve gotten to know you a little bit through your work with Workers’ Injury Law and Advocacy Group. I know you’re a member of the Hispanic Bar Association in Arizona and a number of other volunteer, pro bono cases that you’ve taken.
Lawyers, we get a bad rap in the media but, Javier, you prove that that is just false in everything you do, in the work you do for undocumented immigrants and immigrants of every status. So, thank you very much.
Javier Grajeda: Thank you for the kind words. It’s been great getting to know both of you through WILG. It’s a great organization, and I’m just glad that I have individuals like you to talk about these topics with to really try to improve the workers’ compensation system for everybody that we encounter.
Alan Pierce: I appreciate that. And picking up on Jud’s remarks, look forward to another show on Workers’ Comp Matters where we may approach this same subject from the other side of the fence. I think the employer community and the insurer community also need to be able to weigh in as to the particular difficulties of paying claims or resisting claims, defending claims of immigrant workers, either documented or undocumented. I think that would also give some balance to this issue because it has multiple sides to it.
It does butt up against federal law and immigration law. As a result, I think there is a moral obligation for somebody who profits off the labor of others to be able to provide for that person and his family should there be an injury. Doing that in the context of legal status just exponentially makes it more difficult for all of us.
So having said a lot of that, I want to thank you for joining us on Workers’ Comp Matters. Thank you for listening. Hope to see you on our next show and, please, go out and make it a day that matters. Bye-bye.