Any time an employee is injured on the job, several issues mustbe addressed in order to fully and properly protect each party'srights. Matters are further complicated when the injured employeeis in the United States illegally.

|

Considering the impact of a worker's status on a work-relatedinjury is not easy. From a policy standpoint, it does not seem fairfor an employer, especially one who knowingly hires the worker, toprofit off the employee's labor but then deny that person therights afforded to other employees under state workers'compensation law in the event of an injury. In the alternative, itis wrong for a worker who purposefully breaks the law by enteringthe country illegally, obtains fraudulent documents, and places anemployer at serious legal risk, to suddenly claim rights and beafforded benefits and protection under the law, and at the expenseof the employer and society, when that person needs it.

|

Four states (California, Florida, Nevada, and Virginia) includelanguage in their statutes that appear to clearly cover illegalaliens in their workers' compensation statutes. Twelve states --Alabama, Arkansas, Colorado, Illinois, Michigan, Montana, Nebraska,North Carolina, North Dakota, South Dakota, Texas and Utah --employ statutory language that references "aliens," without makinga legal distinction. Arizona recognizes an "unauthorized alien" as"an alien who does not have the legal right or authorization underfederal law to work in the United States."

|

The remaining 33 states make no mention of aliens in theirworkers' compensation laws. Beyond state statutes, at least 16states, including California, Colorado, Connecticut, Florida,Georgia, Iowa, Louisiana, Michigan, New Jersey, North Carolina,Oklahoma, Oregon, Pennsylvania, Maryland, Tennessee and Texas haveconfronted the issue through case law. These state court decisionsgenerally have found in favor of providing benefits to illegalaliens injured on the job.

|

Among the possible reasons underlying this trend towardproviding coverage for undocumented workers are: 1) statutoryconstruction supports compensability; 2) an employment contractexists, despite the worker's immigration violation; 3) other stateshave permitted compensability; and 4) public policy considerationsthat if illegal aliens are not protected by workers' compensationlaws, employers would use them for unsafe practices with no worryof retribution or accountability.

|

Immigration Policy and Workers'Compensation

|

Congress recognized that the primary factor drawing the majorityof illegal aliens into the United States was the opportunity forstable employment and relatively high wages. In an attempt to stemthis trend, Congress enacted the Federal Immigration Reform andControl Act of 1986 (IRCA) with the broad, simple purpose ofprohibiting the employment of illegal aliens in the United States.IRCA is targeted toward aliens who are either unlawfully in theUnited States, or are not lawfully authorized to work in the UnitedStates. The heart of the act is a system that requires employers toverify the identity and status of each prospective employee byexamining documents provided by the worker. The person cannot behired if he is unable to furnish the required documentation. If theprospective worker provides the necessary documents, the employermust then examine them to determine if they are genuine. If adocument, on its face, does not appear to the employer to belegitimate, the employer must not accept it, and accordingly, mustnot hire that person.

|

However, IRCA did not stop the employment of undocumentedworkers in the United States, nor did it stop undocumented workersfrom filing claims in court arising out of their employment. Interms of workers' compensation claims, courts have routinely foundthat injured workers in the country illegally were eligible forworkers' compensation benefits.

|

In 2002, the U.S. Supreme Court confronted the issue of whetherthe award of back pay to an undocumented worker who was notauthorized to be in the United States was in conflict with IRCA inHoffman Plastic Compounds, Inc. v. National Labor RelationsBoard. The case involved an illegal alien, Jose Castro, whowas terminated by the employer for his involvement inunion-organizing activities. Castro was part of a group that suedthe employer, arguing that the employer violated the National LaborRelations Act by denying their right to self-organization. TheNational Labor Relations Board sided with the employees and orderedthe employer, among other things, to offer reinstatement and backpay to the affected employees. Thereafter, it was discovered thatCastro was not authorized to work in the United States andknowingly used fraudulent documents to obtain employment. Theemployer subsequently argued that Castro's status in the UnitedStates precluded him from receiving back pay as ordered. TheSupreme Court agreed, ruling that an award of back pay in thisinstance violated the principles underlying IRCA.

|

With this decision, the Court established that an illegal alienwas not entitled to wage-based damages for unperformed work. As aresult, it was recognized that a claim of entitlement to lost wagesbrought by an illegal immigrant was a matter dealt with throughIRCA. Nonetheless, since that decision, courts have faced thedilemma of reconciling safety and employment laws with federalimmigration policy.

|

State Laws v. Federal Law

|

One important aspect of law that Hoffman does not address iswhether IRCA preempts state laws governing workers' compensationclaims. Under the Supremacy Clause of the U.S. Constitution, acourt must disregard state law if it conflicts with a federalstatute such as IRCA. The 2002 decision in Hoffman reinforced theidea of federal preemption for claims by undocumented workersseeking damages arising out of their employment. As a result, aflurry of suits were filed by employers seeking to apply Hoffman tostate workers' compensation claims.

|

As before, however, the cases decided since Hoffman generallyhave found that IRCA does not affect an undocumented worker'sability to collect workers' compensation benefits because it doesnot preempt state law. Most courts deciding issues of undocumentedworker eligibility conclude that the decision and IRCA do notpreempt state workers' compensation laws that otherwise allow anillegal alien to recover benefits for an on-the-job injury.

|

Beyond attempts to make claims using IRCA and Hoffman, employershave also advanced the argument that it is against public policy toreward undocumented workers by awarding them workers' compensationbenefits. At least two courts have rejected this position, notingthat denial of benefits to injured illegal aliens would actuallyreward the employer who knowingly hired that worker.

|

When an undocumented worker is injured, the employer is placedin a difficult position. Chances are strong that the injury iscompensable. It is also likely that the injury is serious innature. If an undocumented person is willing to go through thetremendous trouble, expense, and risk of entering the countryillegally to obtain work and make money, then it is not likely thatperson will be easily sidelined by an injury unless it is seriousand significantly affects the ability to work. Also, filing a claimfor workers' compensation draws attention to the worker that mayrequire unwelcome inquiry into his background, which heightens therisk of exposing that person's status.

|

Additionally, the law does not generally afford the employer abreak if an employee is found to be in the United States illegally.First, the employer is subject to possible civil or criminalpenalties under IRCA. Second, if the employee is injured on thejob, the employer will be liable for workers' compensationbenefits, regardless of the fact that the worker, technically, hasno right to employment in the first place.

|

From the start, it is important for employers to understand thatthe law treats them harshly when it comes to hiring undocumentedworkers. To deter undocumented workers, employers should adopt astrict no-tolerance policy for illegal immigrants and notify allseeking employment of this stand. Employers should make the effortto train their personnel to recognize fake or suspiciousdocumentation. Employers should not ignore any questions that ariseregarding a worker's legal status in the United States. All issuesor doubts should be resolved promptly. Furthermore, employersshould make a periodic check of their employees' documentation andshould try to keep up with any changes in immigration law orregulations. Although these recommendations may make the hiring andmaintenance of employees more burdensome for some employers, anyextra inconvenience seems menial compared to the consequences if aworker is exposed as undocumented and/or suffers an on-the-jobinjury.

|

It is clear that there is a general trend toward allowingillegal aliens to be eligible to receive workers' compensationbenefits following an on-the-job injury. The type of benefitsrecoverable, however, can differ, due primarily to the uniquenature of each state's workers' compensation statute. It remains tobe seen whether federal preemption will be a valid legal defensefor a workers' compensation claim. To date, the U.S. Supreme Courthas not taken up the issue of whether an undocumented worker iseligible for workers' compensation benefits and the federalgovernment has not created any further legislation on this issuebeyond IRCA. There is little doubt, however, that with theever-increasing participation of undocumented workers in the workforce, more opportunities for appellate review of these issues willbe presented in the near future.

|

David Wilson is the founder of Wilson & Berryhill, P.C.in Birmingham, Ala. The firm is primarily devotedto trial and appellate practice in the insurance and corporatedefense litigation area. Wilson will speak on this topicduring the 64th Annual Workers' CompensationEducational Conference and 21st Annual Safety andHealth Conference August 16-19 at the Orlando World CenterMarriott. He may be contacted [email protected]. Robert A. "Drew" Feeley is an associatewith the firm.

Want to continue reading?
Become a Free PropertyCasualty360 Digital Reader

  • All PropertyCasualty360.com news coverage, best practices, and in-depth analysis.
  • Educational webcasts, resources from industry leaders, and informative newsletters.
  • Other award-winning websites including BenefitsPRO.com and ThinkAdvisor.com.
NOT FOR REPRINT

© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.