N002562
HOTEL EMPLOYEES & RESTAURANT
EMPLOYEES UNION, AFL-CIO
LOCAL 100
January 22, 2002
VIA ELECTRONIC MAIL &
FACSIMILE
Mr. Kenneth L Zwick
Director, Office of Management Programs
Civil Division
United States Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Re: CFR Part 104, Interim Final Rule for the September 11th Victim
Compensation Fund of 2001
Dear Mr. Zwick:
Hotel Employees & Restaurant Employees International Union, Local 100 (the
"Union") represented 43 workers who perished in the tragic events of September 11th.
These individuals all worked for Windows on the World, a restaurant located in the
World Trade Center. Since September 11th the surviving family members of these 43
workers have looked to our Union for assistance and advice in attempting to put their
lives back together. In response to the concerns of the families and based on the Union's
analysis we submit the following comments with respect to the regulations promulgated
by the Department of Justice on December 20, 2001, concerning the administration of the
September 11th Victims Compensation Fund of 2001 (the "Fund").
Many of the Union's concerns arise from the fact that the majority of the families
are immigrants and had incomes on the lower end of the economic scale. In general, we
fear that the administration of the Fund as contemplated by the regulations will punish
those most in need because it proposes a regressive model for determining economic
losses.
Below we have outlined the regulations that we believe require significant
alteration before our survivors' families could consider opting into the Fund:
The first concept that needs to be changed is the provision that survivors' families
must waive their rights to proceed in Federal or State Court before opting into the Fund.
It is fundamentally unfair to force survivors to waive their rights before they are aware of
the amount of compensation they will receive and when they will receive it. There needs
to be a mechanism for claimants to receive an advisory opinion from an independent,
non-political evaluator regarding the valuation of the award before they are forced to
waive their rights to litigate. As it is now drafted, 28 CFR § 104.31 proposes two
separate tracks to process claims. A third track should be added in order to provide for
such an advisory opinion.
A second crucial area that needs to be addressed relates to immigrant, non-citizen
claimants. The Union has grave concerns that the residency status of the claimant will
disqualify or delay the distribution of awards to families who are non-citizens. For
example, the requirement under 28 CFR § 104.4 that a Personal Administrator must be
installed according to the laws of the decedent's domicile will, in New York, preclude an
undocumented spouse of a victim to assume the role of Personal Administrator. We
believe that this could potentially delay the distribution of funds from the Award months
or even years. The regulations should be amended to state explicitly that no regulation
therein will cause the disqualification or delay in the payment of awards to
undocumented claimants.
Also with regard to this issue of undocumented claimants, the regulations should
prohibit the Justice Department from using the data provided in making claims to the
Fund as a basis for legal action against the claimants or their families based on
citizenship status.
A third key area of concern is the cap on non-economic losses of $250,000 per
decedent and $50,000 for each dependent. Because many of the workers our Union
represented were low wage workers, their families' recovery for economic losses will be
significantly smaller than other families. One method to provide a more equitable system
would be to increase the amount of non-economic recovery available to all families.
We would also like to take this opportunity to relay to you some individual
comments about the Fund from survivors' families that we would also like to be
addressed. First, the definition of dependent as defined in 28 CFR § 104.3(b) is too
limited, and should be expanded to include anyone who was financially or emotionally
dependent upon the decedent, such as domestic partners.
Another concern is that the manner in which the regulations determine economic
losses punishes families in which the decedent was an older worker. If the decedent was
a low wage earner the disparity is compounded. It is the Union's position that this
approach discriminates against older workers and the regulations should be rewritten to
make for more equitable awards.
Finally, with respect Collateral Sources, 28 CFR § 104.47, many of the victims'
families believe that such income should not be reduced from the overall Award. While
under normal circumstances such benefits would have been offset against personal injury
recoveries, the Fund has been established in response to extraordinary events and we
believe that new rules need to apply. Furthermore, if claimants choose to opt into the
Fund, rather than litigate for a more lucrative outcome, they should not be penalized for
availing themselves of collateral sources.
Sincerely,
Comment By:
HOTEL EMPLOYEES & RESTAURANT
EMPLOYEES UNION, AFL-CIO
LOCAL 100
New York, NY