Can illegal immigrants receive workers compensation benefits?Yes, no, and maybe.

In the often-chaotic arena of state-specific workers'compensation laws, there is little consensus on the issue ofbenefits to undocumented workers. A handful of states havelegislation on the books that dictate whether or not illegal aliensare covered; others address the eligibility of aliens, but withoutreference to their legal status; and the vast majority ignore theissue completely, setting forth workers' compensation eligibilitycriteria without any mention of aliens or immigration status.

As if the patchwork quilt of state laws was not confusingenough, federal law also comes into play. Even if a state deemsthat an undocumented worker is eligible for workers' compensationbenefits, some of those benefits may run afoul of the ImmigrationReform and Control Act.

In late 2007, Thomas R. Lee, Professor of Law, Brigham YoungUniversity, and Dennis V. Lloyd, Chief Legal Counsel, Utah WorkersCompensation Fund, published a paper detailing individual state'scurrent legal positions. They found that California, Florida,Nevada, New York, Texas, and Utah all expressly include illegalaliens in their workers' compensation coverage. Idaho and Wyomingexclude them.

In Illinois, Michigan, Minnesota, North Dakota, and Ohio, theworkers' compensation provisions include aliens, but make noreference to their legal or illegal status.

In Alabama, Arizona, Colorado, Montana, North Carolina, SouthCarolina, and Virginia, lawmakers have extended coverage to "aliensand minors" who are "legally authorized" to work. However, theauthors noted that then "begs the question of whether the 'legallyauthorized' modifier extends to aliens or only to minors. Thecourts that have addressed this question generally conclude that itdoes not -- and that all aliens (legal and illegal) arecovered."

The remaining 30 states don't address the illegal alien -workers' compensation benefits issue at all.

The laws, however, are in a constant state of flux, eitherthrough legislative action or judicial appeals.

For example, in mid-November, Utah State Rep. Michael Morley(R-Spanish Fork) proposed a bill that would close a loophole in theworkers' compensation system that allows former employees tocollect benefits when they are fit to work, but unable to do sobecause of incarceration. The bill addresses wage compensationbenefits only; medical and/or disability benefits would not beaffected.

The law had the arguably laudable intent of not forcingemployers to pay workers' compensation benefits to people inprison. However, before giving the bill a favorable recommendation,the Utah House Business and Labor standing committee soughtclarification on how a worker's status as an undocumented alienwould play into the proposal.

Dennis Lloyd, general counsel for the Utah Worker's CompensationFund, distinguished between medical and wage benefit payouts."Individuals who are incarcerated, or of illegal status, couldreceive full benefits, due to medical incapacity, but ... someonewho is able to work, but incarcerated, would not be eligible,"Lloyd said.

Rep. Morley told the committee that a worker who was fit toreturn to work after a temporary medical leave, but unable to do sodue to immigration status, would also not be eligible for wagebenefits.

Richard Burke from the Utah Association for Justice declaredthat the bill actually creates financial incentives for employersto hire illegal immigrants. "There are some unintended consequences... the bill discriminates against legal status ... and createsincentives to hire illegal labor [because the employer will nothave to pay some benefits]," Burke said.

Lawyers in California have already latched onto that idea. Suitshave been filed against companies that hire undocumented aliens,using a provision of California law under which a company thatknowingly hires illegal immigrants can be sued by a competitor whohas suffered economic damages as a result of those hirings.

Even when lawmakers expressly approve workers' compensationbenefits to undocumented workers, some opponents have found favorin courts that reject that benefit on causation grounds.

The Kansas Supreme Court, while acknowledging that an illegalalien claimant was "legally entitled to ... benefits" under theKansas workers' compensation statute, concluded that her benefitscould be suspended on the basis of the "fraudulent and abusive" actshe committed when she misrepresented her identity. The MichiganCourt of Appeals reached a similar conclusion in one of its cases.Pennsylvania courts also have refused workers' compensationbenefits to undocumented workers on causation grounds.

In the last year, the Maryland Court of Appeals approvedbenefits for an undocumented worker injured while performing workhe was not legally permitted to perform. In its findings, theMaryland court noted that only one state court decision (by theWyoming Supreme Court) has construed its workers' compensation lawto exclude undocumented workers.

These rulings and debates are taking place throughout thecountry with increasing frequency as employers and lawmakersgrapple with the issue.

Efforts to bring about a consensus and to attack the problem atits source also are appearing on the federal level. In lateFebruary, The New Employee Verification Act was introduced byRepresentative Sam Johnson (R-Texas). The legislation, which wouldcreate the nation's first mandatory employment verification systemfor all U.S. employers, is backed by a coalition of businessleaders and human resource professionals.

According to its supporters, The New Employee Verification Actwould enable employers to confirm quickly and accurately the legalstatus of prospective employees by checking identification datathrough their state's "new hire" reporting program, a system thatis already widely used for child support enforcement.

For Americans, work authorization would be confirmed onlythrough the Social Security Administration. For non-citizens, workauthorization would be confirmed through the Department of HomelandSecurity that has the databases on visa and immigration status.

Johnson says the new verification system would be superior tothe federal government's existing program because it would rely ona more accurate, up-to-date database, and it would be entirelyelectronic, thereby eliminating susceptibility to fraud andidentity theft.

He also claims that the legislation would help safeguardworkers' identities. A voluntary system would be created using thelatest technology to authenticate and protect a worker's identity.Private sector companies, certified by the federal government,would verify work authorization and authenticate the identity ofemployees by utilizing existing background-check and documentscreening tools. The identity would then be secured through abiometric identifier, such as a fingerprint or eye scan.

The bill also seeks to strengthen enforcement through enhancedpenalties on employers and by referring mismatches found in SocialSecurity numbers to the Department of Homeland Security for furtherinvestigation.