What Hispanics Don't Know Can Hurt Them

Sep 242010

by Jennifer D. Meacham

PORTLAND, Ore. – When watermelons are on sale it's Roberto Cardenas' job to stack the displays at Safeway. Each morning, Cardenas moves around 2 tons of melons from the trucks at the loading dock to the waist-high kiosks on the produce sales floor.

Sixteen years in the U.S. after leaving Mexico, Cardenas has his green card through 2016 and a job with benefits that include college training and a retirement pension. But his work unloading the 10-ton freight trucks can be hard on his compact frame.

Two days into the watermelon sale, Cardenas said his body ached so badly that he could barely move to get up to go into work for another load of melons. Yet he got up and went back to work. After all, he's been doing it this way for the past 10 years.

He's not alone. Roughly half of Hispanic adults in the U.S. work in jobs prone to injuries or susceptible to cancer-causing chemicals, according to analysis of Bureau of Labor Statistics.

In addition to these risks, the National Council of La Raza this month released its findings on the Latino community in America. It found that Hispanics have the highest un-insurance rate (one in three go without) and the lowest pay of any other demographic group.

Even without these barriers, Latinos entering the U.S. can be unprepared for the risks that come with the jobs most frequently offered them here.

Take Oswaldo Bernal, who immigrated to Portland from Colombia 19 years ago and now is an executive at Spanish-language television station KUNP in Portland. When he first came to the U.S. he took a job as a janitor for a McDonald’s franchise: steady local work, decent pay, and an unexpected safeguard.

Three months after scalding his feet while cleaning the fryers — unable to work and stressing about how to make ends meet in this new country — he got a check in the mail. The check was from a government-mandated insurance policy known as worker's compensation.

“I had no idea McDonald's paid into the worker's compensation program for me while I was a janitor there,” said Bernal, who at the time couldn’t even read his pay stubs.

“People in the U.S. seem to have the misconception that those coming from South America are just here to milk the system,” said Bernal, who received the checks for three months before going back to McDonald’s to work full-time for nearly three more years.

“When in reality,” he said, “many of us don't even know what the system is."

Oregon's slice Latinos represent around 10 percent of Oregon’s population, according to statistics from Oregon’s Occupational Safety and Health Agency. This gives Oregon one of the largest concentrations of Hispanics outside such boarder communities as San Diego, Houston and Miami.

With America's "Hispanic Heritage Month" Sept. 15 to Oct. 15, the need for a close look at the options Hispanic workers have for protecting their safety and livability in the event of an accident, whether on or off the job, becomes even more important. OSHA predicts that if trends continue 33 percent of Oregonians — one in three — could be Latino by 2020.

“Oregon’s economy relies on nursery, agriculture, manufacturing, forestry, construction, food processing, restaurants, hospitality, and services,” reports a state-supplied English-to-Spanish Dictionary of Occupational Safety and Health Terms. “These sectors in turn, rely on workers whose English is limited.”

Language barriers often exist for years into assimilation in any country where the language is foreign. Without an interpreter, immigrants to Oregon say they are unable to learn from the English-language brochures, Web sites and media covering their disability protections once here.

"I didn't know anything about American finances when I came here 20 years ago,” Bernal said. “I had to learn by doing since there is so little information easily accessible to the working immigrant class with initially no understanding of the English language.”

For example, for the past seven years a man name Angel has been repairing rugs for a rug repair shop off of Portland's Broadway street. He said that for several years he did this work in Mexico, before eventually being called to Portland. Here he continues his work, pulling fat wool through tough backings with fat needles with hands now suffering from the standard maladies of repetitive, tedious and often difficult actions.

"I can probably only do one more year because..." and Angel lifted his sewing hand, cramped up and calloused. When he can no longer sew, he said he'll go back to his family in Mexico.

Does he know about the programs out there that he could benefit from if his hands become permanently disabled because of his work? Angel looks down. In broken English he replies.

"Well, my employer has done enough just bringing me here. I wouldn't think it fair to get compensation if I became, if that happened."

He doesn't know about Oregon’s worker's compensation system, and thinks disability insurance — which may not cost him more than $10 per month — would be too expensive.

With injuries to workers in Hispanic-heavy occupations making up 45 percent of those reported to the Bureau of Labor each year, there is no better time than now to address the multiple protections in America for anyone looking to safeguard their livelihood and their family in the event of an injury.

Worker’s compensation Most Oregon employers are required by law to buy an insurance policy to cover workers injured on the job. This policy is known as worker’s compensation. The cost to the employer can be several hundred to several thousand dollars per year, depending on the dangers of the job.

Around 200 insurers offer worker's compensation policies in Oregon, including State Farm, Liberty Northwest and SAIF Corp (which has Spanish adjustors and rolled out a Spanish-language Web site in August). These policies pay medical expenses plus 66 2/3 percent of a worker's gross average wage if an injury requires time off.

To use the policy, all workers must do to start their insurance claim is "go to anyone who is a qualified health practitioner, even a nurse practitioner, who can diagnose their condition," said SAIF's vice president for corporate policy, Chris Davie.

Technically this means that the one-third of Latinos without health insurance could be diagnosed at sliding-scale or free clinics. The challenge is finding those clinics that will accept worker's comp.

"The Migrant Worker's Clinic and the Health Department won't take worker's comp cases," said Maria Venegas, one of three Spanish interpreters for Oregon’s Department of Business Services’ Injured Worker Office. "Here in Salem there's a Guadalupe Clinic, and they won't take worker's comp either. I have been asking for years about this, even at the Mexican Consulate in Portland, and everyone says they haven't heard of a sliding-scale clinic that will."

Oregon's Injured Worker ombudsmen's office handles calls that come in about this worker's compensation program. With 1,000 inquiries monthly, nearly 25 percent of those calls are in Spanish.

“We get all kinds of questions about worker’s comp claims,” said Venegas. “But what Spanish-speakers usually ask me about is whether I know any attorneys, doctors or physical therapists — whatever services they need — that speak Spanish or if worker’s comp can provide interpretation.”

By current statute, insurers must pay for an interpreter only during an Independent Medical Examination, typically done when a case is contested. That policy could change soon, however. In July and August the governor's Management Labor Advisory Committee met to look at the use of interpreters in the worker’s comp system. A decision is expected some time after Oct. 1.

The worker's compensation process itself is simple. Medical practitioners get what's known as a Form 801, which comes in English, Spanish and other languages. They write their diagnosis and any recommendation for time off on that form, and mail it to the worker's insurance company. If time off is approved, then worker’s comp picks up the bill.

"If the doctor says that you shouldn’t be working until the next visit and the date,” the ombudsman said, "that also automatically starts the paid time off.”

Even workers who aren’t fully off of work are eligible for semi-weekly checks like those received by Bernal. “If you’re authorized off on modified work, at light duty, you either get a percent of the difference in pay or full-time loss if your employer doesn’t have a light-duty job for you.”

Workers keep getting benefits as long as the practitioner authorizes time off work or light-duty work. Workers stop receiving checks when they don't take a light-duty job offered them, return to work or are classified as “medically stationary” — which means the practitioner believes the worker is as well as possible but still can't return to work. (At that point, another U.S. worker benefit called Social Security would kick in.)

Meanwhile, Oregon has many worker's comp recipients getting “non-disabling/medical only” benefits.

"It is for those workers that don’t miss enough time off to get a time-off benefit check, but who still have medical expenses,” the ombudsman’s office said. “These people just get medical paid.”

Medical coverage in all of these cases includes doctor’s bills, mileage to and from appointments, physical therapy as needed, and prescriptions.

Some employers, such as Cardenas’ employer Safeway, are self-insured with state approval. Instead of buying the state’s worker’s compensation policy, the company posts a bond to cover its own worker's compensation and hires a processing agent or additional staff to manage payouts. It is Safeway’s policy then to shuffle its injured workers into part-time light-duty jobs like answering phones or assisting with non-profit fundraising efforts. If a self-insured employer abuses the system, workers can report that abuse to the ombudsmen's office.

The self-employed, meanwhile, have the option to "take worker’s comp insurance or leave it," the ombudsman said. The Kauffman Index of Entrepreneurial Activity reports that Hispanics are the fastest-growing group of Americans to go into sole-proprietorship. As such, underinsurance for dangerous fields could be a growing concern to local economies, since the self-employed without worker’s comp cannot apply for it when they’re unable to work.

However, regular workers without policies and day laborers hired by agencies still can file a claim. If approved, their claims are paid from special fund where everyone with insurance chips in a few cents per hour. Claims are processed by the non-compliant employer section of the state's Worker’s Compensation system.

The caveat here is that "then the state goes after the company for the money,” says an ombudsman. “And sometimes it’s very expensive; the employer may go bankrupt from settling the claim.”

All of Oregon's official worker's compensation brochures and documents have been translated to Spanish, including its guide on “What happens if I get hurt on the job.”

Personal disability insurance Then there’s personal disability insurance. At $10 to $50 per month to replace $1,000 to $5,000 per month in income (a cost of 1 to 3 percent of each paycheck), disability insurance can give workers a lot of bang for their bucks. Policy holders are paid as long as they're unable to work, regardless of whether or not the injury was sustained on the job.

Yet only a handful of disability insurers in the U.S. offer Spanish-language descriptions on their policies, or Spanish language paperwork to sign. Northwestern Mutual is one that does. The second oldest insurer in the U.S., 4 percent of its recent clients are Spanish speaking — making Latinos its largest non-white client demographic nationwide.

And it's seeing "increasing trends in Hispanic ethnicity as a percent of our total clients," said Meredyth Naramore, corporate relations specialist at Northwestern Mutual.

Even outside of the hard-labor occupations disability insurance can be an unexpected benefit. Seven out of 10 employees between the ages of 35 and 65 will at some point in their career be disabled for three months or longer, according to the Health Insurance Association of America.

"No one can replace 100 percent of their income this way," said Naramore. Still, personal disability insurance is often a good start. Coverage is between 50 percent and 80 percent of an individual's income. The higher the income, the less an insurance company will replace.

Other policies range from supplemental insurance such as that provided by Aflack, which pays for living expenses while sick or injured, to programs where for a few dollars a month U.S. customers — on everything from new credit cards to life insurance — can get coverage where if they lose their job or become disabled their payments still will be made. For those in high-risk jobs, or getting older, these programs quickly can pay for themselves.

Oft-forgotten employee benefits The Consumer Federation of America reminds workers to ask employers about internal benefits such as paid sick leave, short-term disability insurance or group long-term disability income insurance.

Sick leave and short-term disability coverage from employers range from a few days to as long as a year. Meanwhile, group long-term disability coverage replaces up to 80 percent of a worker’s salary if disabled and unable to work.

Typical employer policies replace at least half of a worker’s salary up to an amount capped by the insurer and divulged in advance. Long-term benefits begin when short-term disability benefits stop.

Benefits from group long-term disability policies generally continue until either age 65 or your retirement age under Social Security, or until the worker is able to return to work, reports the Consumer Federation of America (which does not have its site translated into Spanish). It reports that in some policies benefits also are available — for a short while at least — even after returning to work.

Social Security Social Security currently replaces between 12 percent (for a $200,000-per-year job) and 52 percent (for a $20,000-per-year job) of a worker's income in the event of disability. Payments kick in five months after workers are expected to be out of work for a year or longer. The disability part of Social Security only applies if workers are unable to be gainfully employed at any occupation, not just their occupations at the time the disabilities began.

To qualify for this benefit workers pay taxes on enough income to earn up to four "credits" per year. In 2009, one credit can be earned for every $1,090 in wages or self-employment income on which workers pay a 6.2 percent Social Security tax.

Once workers have earned $4,360, they've earned their four credits for the year. Social Security Administration instructions report that workers need 40 credits, earned over their working lifetime, to receive this replacement income at "retirement," which is at least age 62.

However, workers can collect disability and survivors benefits at any age — and with far fewer credits — if they become disabled or a spouse or qualifying family member dies. Paying into this system also qualifies workers for Medicare, a government health insurance plan that covers medical expenses while disabled and after age 65.

Workers and their family members must apply for Social Security disability, survivors and Medicare benefits. They can do that through the U.S. Social Security Administration's Spanish-language Web site at www.ssa.gov/espanol/ or by calling 1(800) 772-1213 to find a Social Security field office nearby. Further information on Medicare and other disability health plans in Spanish is at OregonLawHelp.org.

Preventative measures Coupled with offensive measures workers should take to provide income if they can no longer work, there also are preventative measures employers in Oregon are required by law to take.

Guidelines for safety and health of employees are set by the national Occupational Safety and Health Administration. OSHA offers free on-site, consulting services to help employers identify and remove workplace hazards. Consultations are separate from enforcement and “do not result in penalties or citations,” according to the OSHA website.

Oregon’s Division of Occupational Safety and Health provides additional rules specific to the dangerous industries headquartered here, such as agricultural labor, mill work and logging. Its Spanish-language site is at www.orosha.org/educate/peso.html.

Likewise, if a business releases pollutants into the air, land or water, or stores, treats or disposes of hazardous or solid wastes — ranging from automotive oils to wood stains — not complying with environmental regulations can not only hurt employees who breath the toxins into their lungs but also lead to costly fines for the employer. Workers can check the Oregon Environmental Permit Requirements and look at the options for Environmental Compliance Assistance to see if there’s a hazard on their job that should be helped before more harm is done.

Note that employers cannot charge their workers for required safety equipment such as boots, gloves, dust masks and hard hats if the cost drops the worker's pay below minimum wage. In Oregon minimum wage is $8.40 an hour.

Additional remedies Oregon's court system provides another way to be reimbursed for medical costs or lost earnings when an injury or illness is the fault of someone other than an individual's employer.

"The typical case I see," said bi-lingual attorney Benjamin Grandy, whose Beaverton clientbase is 60 percent Hispanic, "is somebody making deliveries for their employer and getting re-ended by someone else; they have the right to sue the person that rear-ended them. Or on a job site, like a construction site, where a person is working for one contractor and the other is coming in and doing work on the job site and causing injuries; they also can be sued."

There are 36 counties in Oregon, each with its own courthouse. Everyone, whether legally in the U.S. or not, can walk into the courthouse in the county where their injury occurred, ask for the "small claims court," fill out the paperwork provided and sue for up to $7,500 without an attorney. Cost is $50 to $100 to file, and those that win the case can ask for the loser to pay that court cost back.

"Someone’s right to file a lawsuit for having been injured does not depend on their worker document status here," said Grandy, who himself hails from Spain. "There's this fear in a lot of Hispanics that if they don’t have proper documents they’ll get swept up by immigration if they file a law suit."

Indeed, recent Immigrations and Customs Enforcement sweeps — tied to criminal violations in Oregon's Multnomah and Clackamas counties — fill twice-weekly charter flights with immigrants sent back to the borders of such South American countries as El Salvador, Guatemala, Honduras and Mexico.

"I think that puts a general chill on a lot of Hispanics who are a little hesitant about getting involved in the justice system," Grandy said. "Fortunately, when we’re filing [this type of] action, it’s not a problem and I have no reason to think that this has, or will, change.

"Arguably that status may become relevant when the court determines payment for things like lost wages or awards for future earnings," Grandy said. "But it should not keep you from filing."

(Oregon's Court of Appeals is handling a case that will determine if it's even legal to discuss a person's citizenship status in an Oregon court of law. That decision is expected later this year.)

Lawsuits for more than $7,500 go to each county's circuit court, where most people who file or respond to a lawsuit are represented by an attorney. That's actually good news for people with personal injury claims. "Attorneys who do this type of work regularly and take cases to trial a lot take their cases on contingency, not on retainer," said Grandy, who takes on 30 to 50 contingency clients per year. "So if you lose, you don’t have to pay."

The exception is that those filing a lawsuit in Oregon technically are required to pay hard costs, for things like photocopies of documents and court filing fees. These costs can add up to tens of thousands of dollars if a case goes to trial. However, Oregon also provides a way around that rule. Rule 1.8(e) of the Oregon Bar Association's "Rules of Professional Conduct" states that "a lawyer may advance or guarantee the expenses of litigation ... to the extent of the client's ability to pay."

"In other words," Grandy said, "an attorney can decide not to charge the cost if they don’t think a client can pay it." Given that National Council of La Raza reports that nearly one-quarter of Hispanics had incomes below the poverty line in 2008, he said that's good news for worker equality as well.

Note that personal injuries attorney often ask for a third or more of whatever cash award the court decides for the case. This rate can be negotiated before an attorney takes the case.

Meanwhile, those that are injured in another person's car, home or business often have that person's insurance to turn to. For example, the non-profit Workplace Fairness organization reports that some homeowners' insurance policies provide coverage when a homeowner hires a laborer for a job who is then injured while working on the premises.

Life insurance And finally there's life insurance. In 2007, 11 percent of the Oregonian's who died from work accidents were Hispanic. Nationally, the National Census of Fatal Occupational Injuries reports that 480 foreign-born Hispanic or Latino workers died in construction accidents alone in 2008.

Even those that aren’t killed by their injuries can benefit from life insurance, where a “whole life” policy costs only about $40 per month for $25,000 in coverage through such insurers as Northwestern Mutual. “Whole life” polices operate like a savings plan, where money paid into the policy can be treated like cash after about 10 years. Those who are terminally ill can tap the full value of the policy prior to death to either try to get well or enjoy life to its fullest.

For workers like Roberto Cardenas, knowing his options is half the battle. Indeed, laborers and freight, stock and material movers like Cardenas had the highest number of days-away-from-work cases in 2007. That’s according to the most-recent data from the Oregon Occupational Injury and Illness Survey Summary from Oregon’s Department of Consumer & Business Services.

"I've been lucky, because I've never been hurt," he said. But there's always tomorrow.

  • This story was reported with support of the International Center for Journalists.

Additional reporting

For more on issues impacting Oregon's growing Hispanic community see "Financing the entrepreneurial dream" an article also written for this course by Jennifer Meacham.