P000613
February 25, 2002
Mr. Kenneth Feinberg
Special Master
Victim Compensation Fund
U.S. Department of Justice
950 Pennsylvania Avenue
Washington, DC 20530
Dear Ken:
As a follow up to our earlier memo on undocumented immigrants and their access to the
Victim's Compensation Fund, we wanted to elaborate on specific steps relating to employers. As
you know, employers will provide critical support to Fund applicants, both in terms of (i) proving
presence at the WTC site and (ii) documenting economic loss. For that reason, it is important
that employers are encouraged to come forward in support of undocumented victims, and you
might consider the following measures aimed at addressing their concerns about potential
liability.
Advocates have confirmed that many workers in the WTC area were undocumented immigrants
and that often these workers were using falsified documents. Employers, particularly the larger
ones, were more likely to have dealt with these workers above board, which is to say providing
formal pay stubs and filing W-2s with the IRS. In those cases, employers face little risk (though
they may still be reluctant) in coming forward and much of the relevant information should
already be accessible. The tougher cases involve employers paying their undocumented
employees under the table. These employers face potential liabilities on various fronts (INS,
IRS, DOL) and to the extent that no formal documents exist proving the employment or earnings,
the employer's support is that much more critical to the undocumented victim.
In both cases, employers are likely to be more forthcoming if they can be assured that: (i) their
name will not be connected to any compromising information; (ii) none of the information will
be used (or distributed) outside of the Fund application process, or (iii) they will not suffer any
liability stemming from the information they provide.
1. Anonymity. Providing some degree of anonymity may be the most effective and easiest way
to ensure protection. This could be achieved by pooling employee victims (and their respective
earnings) without identifying employers. The process would have to be organized in such a
fashion (perhaps administered by a non-governmental body) as to assure employers that their
anonymity would be protected. Such a list would offer near complete protection for the
employer and would be relatively easy to implement (requiring no additional agency approvals
and minimal resources). The list wouldn't be complete and would be less authoritative than the
formal documentation requested by the Fund, but it might provide the critical proof for some
applicants.
2. Confidentiality. A promise of confidentiality would provide some comfort to employers if it
were really possible to restrict the flow of information provided through the benefits process.
However, there may be limits on your ability to avoid sharing information with other government
agencies and employers may still be wary of leaks.
3. Immunity. Federal and local bodies commonly offer immunity from prosecution in exchange
for important information and, given the importance of the issue, there ought to be some way to
carve out protections in this case. Presumably, employers would only gain immunity from
prosecutions arising from the information provided, but that should help encourage them to come
forward.
These are only partial remedies. Each presents its own set of complications. We offer them as
possible parts of a package you are preparing aimed at ensuring compensation to those most in
need of help. This is information worth struggling to obtain not only for purposes of the Fund,
but in helping those simply seeking some confirmation about the fate of family members and/or
seeking benefits from other sources.
I hope that this is helpful to you. We look forward to seeing you in New York on March 19th.
Thanks again for your interest and attention to these important issues.
Best wishes,
Comment by:
Lawyers Committee for Human Rights
New York, NY