Belk Masonry Co. refused to pay the man because he was illegal.
The man took them to court. It took five years. That’s why we need real immigration reform. Not an election year fence project.
Here’s part of the state ruling from ’02
N.C.G.S. Â§ 97-2(2) does not preclude plaintiff from receiving workers’ compensation benefits based solely on his status as an illegal alien. “‘The philosophy which supports the [Workers’] Compensation Act is that the wear and tear of the workman, as well as the machinery, shall be charged to the industry.'” Porterfield v. RPC Corp., 47 N.C. App. 140, 143-44, 266 S.E.2d 760, 762 (1980) (quoting Cates v. Construction Co., 267 N.C. 560, 563, 148 S.E.2d 604, 607 (1966)). “The primary purpose of legislation of this kindis to compel industry to take care of its own wreckage.” Barber v. Minges, 223 N.C. 213, 216, 25 S.E.2d 837, 839 (1943). These principles are still relevant today and in the particular situation before us. We agree with the deputy commissioner’s finding in this case that we “must also be aware that defendant-employer received the benefits of plaintiff’s labor up to the time of his injury, and it would be repugnant to now deny plaintiff a benefit of the same agreement.”
Furthermore, as Rivera holds, an illegal alien can, despite his or her status, demonstrate an earning capacity in this state. Rivera, 135 N.C. App. at 303, 519 S.E.2d at 781. In the case before us, plaintiff has shown he had the capacity to earn wages as a brick mason prior to his accident. Plaintiff was employed by defendant Belk Masonry Company, Inc. prior to his accident, and he was receiving wages for his work; plaintiff therefore demonstrated an earning capacity.
Defendants next contend that if the North Carolina Workers’ Compensation statute is inclusive of illegal aliens and bestows upon illegal aliens an earning capacity, the statute is in conflict with federal immigration laws and is therefore preempted by them. Defendants contend the Federal Immigration Reform Control Act of 1986 (IRCA) preempts illegal aliens from receiving benefits under the North Carolina Workers’ Compensation Act. Because federal law prohibits illegal aliens from obtaining employment, defendants contend illegal aliens can never be defined as “employees” under federal or state labor statutes. Â Â Â Â Federal law preempts state law in three circumstances: “First, where Congress has explicitly provided that state law is preempted. Second, in the absence of express language, where Congress has intended the federal government should exclusively occupy a particular field. . . . Third, [s]tate law is preempted to the extent it actually conflicts with federal law.” Collins v. CSX Transportation, 114 N.C. App. 14, 18, 441 S.E.2d 150, 152, disc. review denied, 336 N.C. 603, 447 S.E.2d 388 (1994) (citations omitted) (emphasis in original).
Defendants have chosen to focus on the third situation and argue there exists a conflict between IRCA and the North Carolina Workers’ Compensation Act. We disagree. The U.S. House of Representatives report following the enactment of IRCA expressly explained that
[i]t is not the intention of the Committee that the employer sanctions provisions of the bill be used to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by existing law. In particular, the employer sanctions provisions are not inten[d]ed to limit in any way the scope of the term “employee” in Section 2(3) of the National Labor Relations Act (NLRA), as amended, or of the rights and protections stated in Sections 7 and 8 of that Act.
Of course, the new ruling is going to get the righties all fired up, as in this letter to the editor in today’s Char-O about a recent story they did on worker comp and immigration.
In “Injured illegal workers often left with nothing” (Sept. 17), the Observer helped to educate illegal workers on how to get more from our country’s taxpayers and insurance payers. The key word here is “illegal.” If these people don’t have enough respect for our laws to come in legally, why should they expect the benefits that law-abiding citizens have? We need to make it harder for attorneys to earn money by feeding on criminals and free-loaders who think they should get something for nothing while breaking our laws.
First off, it’s the employers who don’t have any respect for the law. Second, how a guy who took a $300/week job carrying masonry around in NC, where it can be rather warm sometimes, suddenly becomes a criminal and a freeloader is beyond me. He was working construction in Charlotte and fell 70 feet flat on his back on a concrete slab. For Belk it was all about the money.