Exploitative law firms: systemic solutions needed from MOM

Posted by on April 2, 2018 in News, Our Stand

In late March 2018, a short while after this article Two injured workers provide detailed accounts of a law firm’s practices was published, the Ministry of Manpower (MOM) asked for the names of the workers and law firms involved.

Transient Workers Count Too declined to provide this information. As the details of that story indicated, the reason why we used pseudonyms in the first place was because the two workers Nagesh and Raju (not their real names) feared retaliation by the law firm (which in the article we referred to pseudonymously as ‘Labagaye’). They also feared that their families would be similarly exposed.

While MOM said they would render assistance to them, and “consider possible ways to manage the errant law firms”, we did not think there was anything that MOM could do to protect the men or their families in India. MOM has no statutory powers, or even influence, on law firms, especially ones which have operated in gray areas of the law for long a time. When men and their families are already exposed to danger, “considering possible ways” is so tentative, and solutions (if any) likely to be so tardy, TWC2 cannot reasonably be assured it would be in the best interest of the men.

MOM also said they would keep the men’s names confidential. Firstly, this will likely contradict steps against the law firm since any investigation would risk exposing the identities of the workers. Secondly, there was an earlier instance when we used a pseudonym for a worker in our article, yet MOM revealed the man’s name in a Facebook note while making reference to our article — we won’t provide a link here since doing so would further expose the man. This does not generate a lot of confidence.

We don’t doubt that in this instance, MOM was merely trying to help the workers involved. It’s just that TWC2 does not believe that at a case level, there is anything MOM can do. Even attempting to help may make things worse for the men involved.

A structural problem

This is not to say that there is nothing MOM can do to address the problem of abusive and exploitative behaviour by lawyers and their assistants. We would in fact urge MOM to think deeply about the systemic issues at play, and fix the problems at a structural level. Doing so may be too late to help the men named in our article, but will surely benefit thousands more injured workers in the future.

The question that has to be asked is this: Why do so many injured workers tie up with a handful of law firms? And we’re talking about a handful, not law firms in general. In Singapore, there is a clutch of firms that specialise in work injury claims and, to promote their business, either employ or are in partnership with associates who speak the native languages of the workers.

A close enquiry would begin by asking: What motivates injured workers to look for legal representation? The answer actually lies in plain sight. An injured worker is a liability to employers; yet the man has to depend on the employer for medical care, housing, food, transport and all the bureaucratic form-filling that is required for future disability compensation. The already great power imbalance between employer and employee is widened. Whereas a working worker at least brings an asset to that relationship  — his labour — an injured worker is entirely of negative value to the employer for he is nothing more than costs. Employers that are financially stressed, or not concerned about ethical behaviour would quickly see that getting rid of the worker would be a desirable solution. In nearly every firm, there would be historical memory amongst the foreign workforce of earlier employees terminated at very short notice and rushed to the airport. Even if such talk was not well grounded in historical fact, workers themselves aren’t so stupid as not to grasp that once injured, they’d be such a liability that instant repatriation would surely cross employers’ minds.

MOM may argue that that would be against the law. And that is exactly what’s wrong with MOM’s approach to a lot of problems: assuming that what’s written in law truly governs how things operate on the ground. There are plenty of examples, recorded in stories in this website, of employers being able to confine workers ahead of forced repatriation. Our stories naturally tell of cases where the workers escaped and managed to reach TWC2 for help. But we’d be foolish not to imagine that there must surely be other cases where the confined worker could not escape and was transported to the airport and repatriated against his will. He would consequently be deprived of medical care and due compensation.

In the last few years, we have not come across any instance of MOM taking action against employers for attempting premature repatriation. It is this inaction that has created a sense of impunity among employers and provided the basis for workers to fear the worst once they’ve been injured.

Forced repatriation is only the worst outcome in a spectrum of employer behaviour towards injured workers. Other articles in this website have described situations where a worker with a leg injury, unable to walk, is left in an upper-floor dormitory. He is unable to get food; nobody bothers. We’ve also described situations where supervisors and other company personnel visit injured workers in the dorm to demand that they sign documents falsely declaring that they were not injured at work. When workers resist signing, they get beaten up. And then there are many articles about employers interfering with doctors’ judgement about medical leave, or simply refusing to take workers to the doctor.

Likewise, TWC2 has not come across any punitive action by MOM when workers report having experienced such abusive behaviour.

It should hardly be a surprise that injured workers get extremely apprehensive about their vulnerability to employers’ whims. Considering how absent MOM is from the daily indignities they have suffered, e.g. failure of employers to live up to promised salaries, late or non-payment of wages, misstatement of overtime, it should hardly be a surprise either that many workers will have little faith that MOM will protect them from exploitative and abusive employers after an accident. Their own lived experience, talk amongst their compatriots, and the historical memory of fellow workers, only serve to reinforce this view.

Lawyers as protective godfathers

So what is an injured worker to do? He looks for someone to act as a counterweight against the employer. Yet, in doing so, he becomes easy prey to legal assistants who prowl hospital waiting rooms, or who are recommended by friends, and who stoke the injured worker’s fears by speaking of repatriation, denial of follow-up medical treatment, or even cover-up (by the employer) of the accident.

When a legal assistant suggests to an injured worker that he should leave the dorm straight away, it sounds like a good idea.

However, as our article  Two injured workers provide detailed accounts of a law firm’s practices shows, the law firm can be similarly abusive to workers, once the latter have fallen into their hands. But trying to deal with law firms on these specific abuses is at best a short-sighted remedy, even if we ignore the fact that MOM has neither statutory powers nor much leverage over law firms.

Moreover, even if MOM or other ministries were able to shut down the current clutch of law firms, the failure to establish a viable alternative in the minds of workers will only mean that a new crop of law firms will emerge to take over from the previous bunch.

Action on many fronts needed

It is a structural problem. The vulnerability of injured workers must be addressed. This would require action on many fronts, for example,

1. Allowing injured workers to make a simple notification to MOM via the phone that they have been injured (as opposed to requiring injured workers – even those who are mobility impaired – to travel to MOM to fill forms), and once this notification has been received,

2. Quickly checking (including with repeated physical visits to the worker in his dorm) that the employer is providing proper food, housing, mobility assistance, salary, medical leave wages, etc;

3. Providing injured workers (during these visits) with information in their own language, about their rights and compensation processes;

4. Stamping out employer interference with medical treatment and medical leave;

5. Punishing severely (including with prosecution) any attempt to confine or repatriate workers against their will, and making public examples of such errant employers;

6. Punishing any attempt by employers to cover up or delay the reporting of accidents;

7. Making a determination as to the WICA validity of an accident within one month of reporting, so as to deny employers the option of contesting whether an accident took place at a worksite at the later stages of the compensation claim, when records have had time to be tampered with, or other workers who witnessed the accident have been sent home.

8. At the end-stage, when the cheque for disability compensation is issued, it should be in the worker’s own name, and should be given to him by hand over MOM’s counter. It should not be mailed to the law firm.

It’s all very well for MOM to want to help the two men featured in our earlier article, but the problem is structural. Progress comes from looking at the big picture. Only major improvements to the power imbalance between employers and workers will eradicate the need for injured workers to look to lawyers for protection.

TWC2 is an organization that is dedicated to assisting low-wage migrant workers when they are in difficulty. We are motivated by a sense of fairness and humanity, though our caseload often exceeds our
means.

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