Federal Case Against Sweden in Manhattan Underscores Need for Basic Employment Protections for Americans Employed by Foreign States in U.S.

NEW YORK — In a Southern District of New York courtroom later this month, Zein E. Obagi, Jr. of Litigation, P.C. will shine a light on elements of the Foreign Sovereign Immunities Act largely unknown to the public, elements which allow foreign sovereigns to, without liability, subject American citizens to abuses in the workplace. These abuses would be considered unlawful if executed by a company in the United States.

The abuses disclosed in the course of the trial will make it abundantly clear that Congress and the Trump Administration should — and must — enact changes to the Foreign Sovereign Immunities Act requiring foreign sovereignties to adhere to state and federal labor laws when employing an American citizen in the United States.

On Oct. 23, a non-jury trial will begin in Figueroa v. The Ministry for Foreign Affairs of Sweden, et al., SDNY Case No. 16-cv-0682. The case is born out the treatment and work conditions Mr. Figueroa was subjected to during his employment, after a workplace injury, with Sweden’s Permanent Mission to the United Nations in New York — conditions and treatment which ultimately led to Mr. Figueroa being declared permanently disabled.

In December 2005, the Mission hired Mr. Figueroa to be a driver to its ambassador to the United Nations, and office clerk. Through the duration of Mr. Figueroa’s employment, the Mission violated both the terms of its agreement with Mr. Figueroa and Mr. Figueroa’s rights as an employee through various measures, including:

• Assigning Mr. Figueroa duties that involved neither driving nor clerking, even if Mr. Figueroa was in no way qualified, and that were at times at Mr. Figueroa’s own peril.

• Requiring Mr. Figueroa to sign confidential agreements in a language he did not fully understand, and ignoring his requests to translate the documents.

• Violating the Swedish Work Environment Act (SWEA) despite admissions that the Mission seeks to abide by the Act.

• Failing to provide worker’s compensation insurance, despite the Swedish Foreign Ministry’s own administrative handbook stating “it is important for local staff to be covered by occupational insurance.”

• Requiring Mr. Figueroa to disclose medical reasons for doctor visits, to the point he felt if he did not do so, he would lose his job.

These conditions came to an unfortunate head for Mr. Figueroa on May 25, 2012, when the Mission instructed Mr. Figueroa to construct a wardrobe standing nearly 8 feet tall and weighing nearly 200 pounds. Part of the construction process included hanging a pair of doors on the wardrobe, doors which weighed 85-90 pounds on their own. And the Mission required Mr. Figueroa to do this alone, despite repeated assurances Mr. Figueroa would be provided assistance, and despite the manufacturer’s instructions that stated assembly and hanging should be done by at least two people.

Unlike one employed by a non-sovereign, Mr. Figueroa was not protected by OSHA. If he refused to do the dangerous work he could be fired. In the process of hanging one of the 45-pound doors, Mr. Figueroa lost balance on a ladder and suffered injury which ultimately rendered him permanently handicapped. Upon learning of the injury, the Mission violated Mr. Figueroa’s rights and compromised his integrity in a variety of ways, including:

• Instructing Mr. Figueroa to commit insurance fraud since they did not carry workers’ compensation insurance, but did have a Cigna insurance policy into which Mr. Figueroa paid.
• Cutting Mr. Figueroa’s pay, then ultimately cutting off his insurance.
• Assigning Mr. Figueroa nearly 80 hours of overtime work in September 2012.
• Conducting surveillance on Mr. Figueroa and his wife without their knowledge.
• Attempting to discredit Mr. Figueroa’s claim that he was injured at work, despite their written records containing notations, but no investigation of his workplace injury.

The evidence will show that not only did representatives of the Mission instruct Mr. Figueroa to commit insurance fraud, but that the Mission subsequently reduced, then severed Mr. Figueroa’s insurance coverage and disability pay. They left him for a homeless state, but for the wise actions of his wife to get him out of New York.

In addition, representatives of the Mission, including the Head of Chancery, subsequently admitted that they disregarded their own protocols when it came to investigating the incident and ensuring Mr. Figueroa saw a physician immediately after his injury. Instead, they put him right back to work.

Perhaps most importantly, more than three years after Mr. Figueroa’s fall a receptionist at the Mission expressed via email her hopes that Mr. Figueroa’s attorney would obtain for Mr. Figueroa the compensation he would have received had he been employed by a U.S. company. That email highlights the main point of this release – a class of American workers are totally unprotected in the United States.

The Foreign Sovereign Immunities lacks uniform interpretation from the Ninth Circuit to the Second Circuit, and only Congress can act to ensure that a foreign state’s employment of an American in the United States comes with the same human rights protections accorded by state and federal to Americans working for private employers. Otherwise, America permits disempowered persons to be subject to third-world human rights without recourse. Fortunately, in this case, Mr. Figueroa has the right to sue his sovereign employer for negligence, but only because he was severely injured. Obagi and Figueroa will be available to answer questions starting November 13, 2017.

Questions or comments directed at Litigation, P.C. may be emailed to support@obagilaw.com or made via telephone at (424) 284-2401. Litigation, P.C. is a California-based law firm that prides itself on delivering “Large Firm Results, and Small Firm Attention”.