Workers’ Compensation for Illegal Alien Workers

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 What Is Workers Compensation?

Workers’ compensation is a state-mandated insurance program that provides compensation to employees who suffer injuries while on the job. An employee who is injured while on the job is guaranteed benefits regardless of who was at fault for the injury. In return for workers’ compensation benefits, employees generally forfeit the right to sue their employer in court for damages for their injuries.

Workers’ compensation benefits generally include:

  • Replacement income;
  • Medical expenses;
  • Rehabilitation;
  • Long-term or lump sum pension if you are permanently unable to work; and
  • Temporary disability pension while you are unable to work.

In order to satisfy workers’ compensation requirements, you must be an actual employee of your employer. What this means is that you cannot be an independent contractor. Additionally, your injuries must be work related

Some of the most common examples of injuries covered by workers’ compensation include:

  • Repetitive stress injuries;
  • Illnesses or diseases that are a gradual result of work conditions;
  • Traumatic physical injuries;
  • Repeated trauma injuries;
  • Mental injuries when associated with physical injury; and
  • Occupational diseases.

It is important to note that there are several types of injuries which remain uncovered by workers’ compensation:

  • Self- inflicted injuries, including injuries when you cause a fight;
  • Injuries resulting from the commission of a serious crime;
  • Injuries caused when your own conduct violates company policy;
  • Injuries received while intoxicated or under the influence of illegal drugs; and
  • Injuries in which you were acting in a reckless manner.

Additionally, several classes of workers are not entitled to workers’ compensation benefits. The following are not covered by workers’ compensation:

  • Business owners;
  • Independent contractors;
  • Federal employees, under the state’s scheme;
  • Domestic employees in private homes;
  • Farm workers;
  • Maritime workers;
  • Railroad employees; and
  • Unpaid volunteers.

However, it is important to note that workers compensation laws can vary by state.

What Is The Immigration Reform And Control Act (IRCA)?

The Immigration Reform and Control Act (“IRCA”) was signed into law in 1986. The purpose of this law was to amend, revise, reform, and reassess the status of unauthorized immigrants as set forth in the Immigration and Nationality Act. The Act included sanctions against employers for hiring undocumented migrants, and enhanced border enforcement as well as initiating a more expansive legalization program.

Unauthorized immigrants were given the opportunity to apply and gain legal status if they met certain requirements; the status of those who applied was eventually determined by the U.S. Attorney General. The Immigration and Naturalization Service (“INS”) is responsible for implementing this law.

The IRCA imposes certain requirements on employers such as prohibiting employers from knowingly engaging in certain actions such as:

  • Hiring;
  • Recruiting; and/or
  • Referring, for a fee, any person who is unauthorized to work.

Employers are also prohibited from requiring employers to confirm their employees’ current immigration statutes.

Employers are required to verify both the identity and employment eligibility of various employees, such as:

  • Regular temporary workers;
  • Temporary agency personnel; and
  • Student employees.

Additionally, employers are required to complete and retain a one-page form which documents this verification. This is INS Form I-9, and it is a requirement for all employees working in the United States. Form 1-9 requires the employer to:

  • View the employee’s forms of identification ensure that they are not false or invalid;
  • Have the employee sign the I-9 form;
  • Ensure that the form is both properly completed and legible;
  • Complete the verification section, as well as record which documents were presented; and
  • Confirm that their employee is eligible for employment by signing the form.

Among the documents which establish both identity and eligibility are:

  • Certificate of U.S. citizenship;
  • Current U.S. passport;
  • Certificate of naturalization;
  • Unexpired foreign passport containing an unexpired stamp allowing employment;
  • Temporary Resident Card; and/or
  • Employment Authorization Card.

Employees can also present documents which establish only identity:

  • State driver’s license or identification card;
  • School or university identification;
  • Voter registration card;
  • U.S. military identification card;
  • Military dependent’s identification card;
  • Identification cards issued by federal, state, or local government agencies; and/or
    A driver’s license issued in Canada.

Among the documents that establish only employment eligibility are:

  • Social Security Card;
  • Birth Certificate issued by a state, county, or municipal authority with an official seal;
  • Unexpired INS employment authorization;
  • Unexpired reentry permit;
  • Unexpired Refugee Travel Document;
  • Birth certificate issued by the Department of State; and/or
  • Identification used in the U.S. by the resident citizen.

In order to gain legal status, applicants must prove that they:

  • Have lived and maintained a continuous physical presence in the U.S. since January 1st 1982;
  • Possess a clean criminal record; and
  • Can provide proof of registration with the Selective Service.

Applicants must meet minimal knowledge requirements in U.S. history, government, and the English language. Alternatively, they may pursue a course of study which was approved by the Attorney General. After applicants were given legal status or considered to be temporary lawful residents, they were disqualified from receiving all types of public assistance for five years. However, the rules for applications and welfare assistance did not apply to Cuban or Haitian immigrants.

Can Undocumented Immigrants Get Workers Compensation?

It is of the utmost importance to note that the term “illegal alien workers” is incorrect and dehumanizing. Moving forward, the term will be replace with “undocumented immigrants.”

To reiterate, workers compensation is intended to provide fair compensation to an employee or their family in the event of injury or death from an occupational injury. Workers compensation also protects the employer from any negligence claims that an injured employee may bring by having this set process in place.

Undocumented immigrant employees should note that during the process of submitting for workers’ compensation, they can very easily be discovered to be an illegal resident. As was previously mentioned, under the Immigration Reform and Control Act (“IRCA”), it is illegal for an employer to knowingly hire an undocumented resident.

Generally speaking, there are three eligibility requirements that must be met in order to receive workers compensation:

  • The employer must carry or be legally required to carry workers compensation insurance;
  • The person must be an employee of the company; and
  • The injury or illness must be work-related.

However, because of the above list, courts differ in their opinion regarding whether undocumented immigrants are entitled to receive workers compensation. The argument is whether an undocumented immigrant employee is considered to be an actual employee. Because of this, there are different findings:

  • Full Benefits: Courts who allow full benefits say that being an undocumented immigrant has nothing to do with them having represented themselves as a legal employee, and having been injured on the job. As such, anyone who was injured while on the job should receive compensation;
  • No Benefits: Some courts have denied benefits to undocumented immigrants, citing that they do not meet the definition of the term “employee.” Due to changes and progress, several states have statutes that specifically include undocumented immigrants as eligible individuals to receive workers compensation; or
  • Some Benefits: Other courts have found that undocumented immigrant workers are entitled to some benefits, generally rehabilitations and wage disability benefits.

Do I Need A Lawyer For Help With Workers Compensation For Undocumented Immigrants?

If you are unsure of whether you are eligible for workers compensation, contact a workers compensation lawyer as soon as possible. Because there is a statute of limitations of filing a claim for benefits, the sooner you act, the higher likelihood of having a successful claim. Your attorney can help you understand your legal rights and options, and will also be able to represent you in court as needed.

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