Workers’ Compensation for Illegal Immigrants

In many states, an undocumented worker who is hurt on the job is still entitled to workers’ compensation benefits, even though he or she should not have been employed in the first place. This is an important consideration for employers, since there are an estimated 3 million undocumented immigrants in California and Texas alone.


Many employers have had the unnerving experience of having an injured employee file for workers’ comp, only to learn that the employee was an illegal immigrant. Usually, the employee presented convincing fake documents at the time of hiring. However, often during the course of medical treatment or workers’ comp proceedings, the employee is revealed as an illegal immigrant who is not authorized to work in the U.S.


Under the federal Immigration Reform and Control Act or IRCA, it is a crime for the employer to knowingly hire anyone who cannot legally work in the U.S. However, many employers unintentionally violate the law by hiring an employee whose I-9 documents seem legitimate, only to discover months or years later that the documents were forged. Because it is also a crime for the employer to continue to employ undocumented workers, usually the employee is terminated.


However, the terminated employee may still qualify for workers’ comp in many case. State laws in Texas, New York, Florida and Utah specifically grant undocumented workers who are injured on the job the right to collect workers’ comp benefits. In Connecticut, Georgia, Nebraska, Louisiana, Ohio, Oklahoma, North Carolina, New Jersey and South Carolina, the courts have ruled that an employee cannot be denied workers’ comp solely because he or she was an undocumented worker who was illegally employed.


In other states, an illegal immigrant does not qualify for workers’ comp. Arizona and Wyoming courts have ruled that the illegal immigrant cannot legally enter into an employment contract, and therefore is not an employee. The same argument has failed in Georgia, Connecticut, Louisiana, Oklahoma, Texas and Ohio.


This is in contrast to court rulings on FLSA, which have held that the undocumented worker is entitled to back wages for overtime, even if he or she should not have been employed in the first place.

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