TBA Law Blog


Posted by: Christy Gibson on Jun 16, 2014

by Steve Wilson*

Once upon a time, in a land called Plenty, lived Mr. Shoemaker. The citizens of Plenty loved Shoemaker’s shoes. Shoemaker's boss, Shoe-Boss, was delighted with Shoemaker’s work ethic and abilities. Shoemaker was the happiest of all. You see, he escaped his homeland after shoemaking was outlawed by the Great Barefooted Leader.  Despite slipping into Plenty, without participating in the immigration process, life was pretty good.  He had found work with Shoe-Boss and could take care of his family.

However, one day, Shoemaker suffered a nasty cobbling accident during the course and scope of his employment. He reported the injury but sought out and paid for his own emergency treatment.  Shoemaker's work injury steadily worsened.  He could no longer afford his medical bills.  In desperation, he begged Shoe-Boss for help. Shoe-Boss did not want his workers' compensation insurance premiums to rise as a result of a claim and ignored the request.

Fearful of permanent injury and too pained to work like he used to, Shoemaker asked for help from his friends and neighbors. He discovered he had a right to medical treatment and luckily Shoe-Boss already had insurance to pay for it.  However, when Shoe-Boss was notified of the claim, he flew into a rage and fired Shoemaker that same day.  He yelled his lungs hoarse that this is what happens when he encounters disloyalty. Hearing this, his other undocumented employees grew afraid. None of them would ever ask for medical care after a work injury again.

After hearing what had happened to Shoemaker, the citizenry of Plenty were not too bothered because those people should not even be in Plenty! Shoe-Boss was confident in his actions. All of his workers, even the undocumented ones, were covered by his workers' compensation insurance. However, if one of the undocumented made a claim, he had every right to fire them.  He could fire them for any reason, including making a claim, because they were not legally allowed to work for him anyway. Hmmm, he thought, he couldn’t fire a “legal” employee for making a claim without fear of a retaliatory discharge lawsuit. That could get VERY expensive. "I am a GENIUS," he exclaimed! "It's cheaper for me to hire illegals!" 

By a strange coincidence, the citizenry soon found jobs were in short supply. More employers heard how Shoe-Boss successfully kept down his insurance premiums and also created less “difficult” employees. Businesses that did not follow the lead of Shoe-Boss found it too expensive to compete and soon went out of business.  Scared of losing their jobs to less difficult employees with fewer rights, citizens grew hesitant about filing workers' compensation claims, too. 

A statutory chill swept across the land and employers like Shoe-Boss thrived.  The End.   

Tennessee Retaliatory Discharge and Worker’s Compensation Claims

Normally, in Tennessee, an employee can sue her employer for retaliatory discharge if he/she is fired for making a workers' compensation claim.  In the landmark cases of Clanton[i] and Chism,[ii] the Tennessee Supreme Court framed an action for retaliatory discharge because, "in limited circumstances, certain well-defined unambiguous principles of public policy confer upon employees implicit rights which must not be circumscribed or chilled by the potential of termination."[iii]  Further, the Court held "to allow an employee to be discharged for filing a workers' compensation claim would 'completely circumvent' the legislative scheme; thus, a retaliatory discharge cause of action was necessary to carry out the legislature's intent."[iv]

Yet, in Tennessee state courts, there is currently a legal vacuum on the issue of whether an undocumented worker has standing to pursue a claim for retaliatory discharge when he is fired for making a claim for workers' compensation.  Hard to believe, considering the plain statutory language in Tennessee relating to workers' compensation covers a huge variety of employment, including employment of undocumented workers.[v]  Further, there is no exclusion, specifically, or alluded to, by statute or case law, that undocumented workers who are legally entitled to workers' compensation are by some bizarre bent logic barred from bringing an action for retaliatory discharge when fired for making a claim for workers' compensation.    

Nonetheless, there are employers much like Shoe-Boss who insist that undocumented workers have no right to retaliatory discharge action under any circumstances.

Federal Take: Public Policy Justifies A Cause of Action But With Fewer Remedies

A cause of action with limited remedies is still a cause of action. Those who argue against a retaliatory discharge claim for undocumented workers focus on the fact that the worker is not legally allowed to work for the employer and so could not be reinstated.  Of course, a court could not order reinstatement for an undocumented worker.  However, this argument deals only with remedies, not the legitimacy of the cause of action.  Reinstatement is just one remedy for a proven case of retaliatory discharge.  There are other remedies that undocumented workers would still qualify for, such as nominal damages, non-economic compensatory damages, attorney fees and punitive damages.  Even a legally employed worker would unlikely qualify for ALL legal remedies usually available for any given cause of action.

Many federal courts have upheld the rights of undocumented workers to pursue retaliatory discharge cases, albeit barring access to certain remedies such as reinstatement and back-pay.[vi]  The notion of an in terrorem effect has proven a central concern for numerous federal courts across the country, dealing with a whole spectrum of statutory protections available to employees in the workplace.[vii]

This in terrorem effect is especially concerning in the context of workers compensation. Workers compensation insurance is paid solely by the employer. As with all insurance, many factors contribute to the cost. Within competing industries, many of these items are fixed. However, a competitive advantage can easily emerge if an employer, like Shoe-Boss, was permitted to limit or discourage actual workers' compensation claims.

Indeed, to deny a cause of action to undocumented workers in this context would set perverse incentives for unscrupulous employers to hire more undocumented workers.  Such an employer would face zero risk of litigation for terminating these workers for making a workers' compensation claim.  At the risk of losing their jobs, undocumented workers would likely choose to forgo pursuing any claims or complaints.  Citizens, and others legally authorized workers, may become less attractive prospects to many employers – especially in “high risk” job classifications prone to more on-the-job injuries.  Thus, law-abiding employers would suffer because of unfair competition. Our twisted fairytale of Plenty would be replicated right here in Tennessee, with only ruthless Big Bad Wolf employers left happy.   

The undocumented worker walks between the dimmed light of two opposing worlds: one regulated, and one unregulated.   As a result, undocumented workers are more likely to suffer humiliating treatment in the workplace because there is a fear of being terminated for any kind of complaint. This is not an argument in support of illegal immigration, but an argument against willful blindness to the realities undocumented workers must wrestle with when deciding how to defend themselves against an employer that has no respect for them as human beings or the laws of this country.  When we deny undocumented workers all the protections of the legal system, whether it's a workers' compensation claim, sexual harassment or blowing the whistle on the illegal practices of crooked employers, we are enabling society's Big Bad Wolf employers.  

Without adequate legal protections for undocumented workers in Tennessee, we shall all end up living not-so-happily ever after.    

_________________________

* Steve Wilson is a solo practicing attorney in Memphis, Tennessee, where he practices mainly immigration law and employment law.  Steve received his Bachelors of Economic & Social Studies from University of Wales, Swansea in 2005.  He emigrated from Wales to the U.S. in 2006. Steve graduated from University of Memphis School of Law in 2009. He may be reached at (901) 337-1300 or steve@stevewilsonfirm.com.


[i]Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn. 1984)

[ii]Chism v. Mid-South Milling Co., 762 S.W. 2d 552 (Tenn. 1988).

[iii]Provonsha v. Students Taking a Right Stand, Inc. (STARS), No. E2007-00469-COA-R3-CV, Pg. 4 (Tenn. Ct. App, 2007) (quoting Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717 (Tenn. 1997)).

[iv]Sanders v. Henry County, No. W2008-01832-COA-R3-CV., Pg. 6 (Tenn. App. 2009) (quoting Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 444-45 (Tenn. 1984). 

[v]See T.C.A. § 50-6-108(a); See Silva v. Martin Lumber Co., No. M2003-00490-WC-R3-CV, 2003 WL 22496233, Memorandum Opinion (Tenn. Workers' Comp. Panel 2003) (citing Am. Sur. Co. v. City of Clarksville, 315 S.W.2d 509, 513 (Tenn. 1958)).  Specifically, the Tennessee Supreme Court noted "[t]he ordinary and usual meaning of the word 'employee' is one who is employed by another and works for wages or salary without regard to whether the employment is legal or illegal."  T.C.A. § 50-6-102(10)(A), defines "Employee" to include "every person, including a minor, whether lawfully or unlawfully employed ..." [emphasis added]."  

[vi]Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002)    

[vii]See Rivera v. NIBCO, 364 F.3d 1057, 1063 (9th Cir. 2004), cert. denied, 544 U.S. 905 (2005); In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (denying discovery of plaintiffs' immigration status, noting that such discovery could inhibit the pursuit of their legal rights); Almanza v. Baird Tree Service Co., Inc., No. 3:10-CV-311, 2012 WL 4026933 (E.D. Tenn. Sept. 12, 2012) (denying discovery of immigration status because it is irrelevant to unpaid wage and retaliation causes of action under the FLSA); and, Cazorla v. Koch Foods of Mississippi, LLC., 287 F.R.D. 388, 389; 2012 U.S. Dist. LEXIS 178221, at *4-5 (S.D. Miss. Nov. 30, 2012) (denying discovery into immigration status in a Title VII case because any relevance of immigration status is clearly outweighed by the in terrorem effect disclosure of this information would have in discouraging the plaintiffs from asserting their rights in this lawsuit).