Undocumented Workers

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 Can Undocumented Workers Receive Workers Compensation Benefits?

Workers’ compensation in general is a sensitive topic for employees, who often feel like making a claim might be construed in an unfavorable manner by their employers, and result in undesirable consequences for them. The topic becomes even more sensitive when a workplace injury is sustained by an undocumented worker. In such situations, the undocumented employee might be facing serious doubts as to the steps that they are entitled to take under workers’ compensation law, and the protection they enjoy given their citizenship status and all possible compensations.

The State of California is home to a big portion of the United States’ undocumented immigrants, which are also the ones who are engaged in hazardous work such as construction or agriculture. This article will aim to provide undocumented employees in the State of California with an overview of the possibilities they are facing in the event of an injury sustained in the course of their employment. 

For further details, consultations and advice if you find yourself in such a situation, we recommend you contact one of our Workers Compensation Lawyers Los Angeles, who can guide you through everything you would need to know and do in order to obtain compensation.'

Can I even obtain workers’ compensation if I am undocumented?

It is important to note that generally, undocumented workers enjoy all of the legal rights and remedies provided to workers by California law, and by federal law as well, with very few exceptions, which are usually in the areas of unemployment insurance and unions. Therefore, even if you are an undocumented worker, you can receive workers’ compensation benefits. 

This is important as many undocumented workers believe that due to the fact that they are undocumented, they would not be able to qualify or that applying for workers’ compensation will result in their deportation. 

The State of California has made an effort to recognize the reality and to take action for legal protection. 

I am undocumented, do I have any rights as an employee?

The enactment of the Immigration Reform and Control Act of 1986 (IRCA) made it illegal for employers to knowingly hire or recruit undocumented employees. Any employers found in violation of the act face fines or other legal sanctions. While enacting IRCA had as it purpose to deter employers from hiring undocumented workers, in reality the burden of it has been transferred from the employers to the undocumented workers themselves, as employers find other ways to take advantage of such employees, like further decreasing their wages with the argument that in hiring them, they are taking on a risk.

California took an approach which has as its aim to prevent employers from taking advantage of undocumented workers due to loopholes in federal law, and to limit exploitation. In 2002, a law was passed according to which the same employee protections are afforded to every worker, regardless of whether they are undocumented. The protections include minimum wages, back wages, anti-discrimination rights, overtime pay, disability payments, workers’ compensation benefits.

In order to make use of these legal protections, however, it is important that the employer did not know you were undocumented. Otherwise, your relationship would have been illegal from the outset and the matter is complicated further.

In its commitment to protect the right of all employees, the California Supreme Court even adopted a decision in 2015 according to which an undocumented worker using a false Social Security number for job applications could still possibly obtain workers’ compensation benefits with respect to a back injury sustained while on the job. It was stated in the ruling that “although federal immigration law prohibits an unauthorized alien’s use of any false document to get a job, that law does not prohibit an employer from paying, or an employee from receiving, wages earned during employment wrongfully obtained by false documents, so long as the employer remains unaware of the employee’s unauthorized status.”

Is it possible to make a workers’ compensation claim without being deported?

If you are undocumented, one of your primary fears when facing the decision whether to make a claim for compensation with respect to an injury sustained while at work is whether this will present a risk of deportation. The California Division of Labor and Enforcement has made an attempt to provide protection to undocumented workers who are injured while at work by not questioning the immigration status of any applicant who is applying for workers’ compensation. Other actions undertaken by the State of California include:

• Taking a stance by California’s Labor Commissioner in 2017 against Immigration and Customs Enforcement (ICE) agents from freely entering (without a warrant) the Labor Commissioner’s Office with the aim to be present during an investigation, regardless of whether ICE has received a tip that an applicant or a witness is undocumented.
• California Supreme Court Chief Justice Tani Cantil-Sakauye, again in 2017, wrote an open letter asking for ICE officials to not be directed and to stop “stalking undocumented immigrants” in courthouses to make arrests.
• Senate Bill 183 has been enacted, which requires ICE agents to obtain a valid federal warrant in order to detain, question or perform surveillance on an individual inside a state building, which includes courts and schools, amongst others.
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While these steps may not present all of the needed comfort, they do attest to the State of California’s attempts to provide undocumented workers with equal rights with respect to their employment.

I have used false documents to be able to work. Will this affect my workers’ compensation claim?

Employers or insurers may attempt to avoid paying for workers’ compensation benefits claiming that the false statements made by the employee about their immigration status should prevent that employee from receiving workers’ compensation benefits. However, when an undocumented worker claims for an injury at work, there is no fraud with respect to the workers’ compensation benefits. Rather, the fraud is related to the employment itself, and not the benefits. The statements made with respect to the right to work in the United States are irrelevant to the case for workers’ compensation.

Can I actually obtain all workers’ compensation benefits which I would have otherwise been entitled to if not for my undocumented status?

In theory, yes. Undocumented workers can receive medical treatment benefits, permanent disability benefits, etc. However, in practice, an injured worker who cannot work because of their undocumented status will not be entitled to temporary disability benefits in some instances where the inability to work is caused not by the injury itself, but by the immigration status.

For example, the employer may have the possibility to provide modified work duties or lighter work, but the injured worker who is unable to undertake that work due to their immigration status will not be entitled to temporary disability benefits.

This situation arises when the employer has learned of the employee’s undocumented status after the injury has been sustained, and it has become illegal for them to provide employment for that particular employee. 

Thus, the fact that the injured employee cannot continue to work is not due to the injury itself, or the refusal of the employer to provide them with modified work, but is rather due to the illegality in providing further employment. Thus, in such a situation the employee does not qualify for temporary disability benefits.

Conclusion

The situation when an undocumented worker sustains an injury and has to seek workers’ compensation benefits is severely complicated due to the concerns the injured employee faces. The State of California recognizes that undocumented workers form a significant percentage of their active work force, and thus attempt to provide them with the same rights all workers should enjoy and to protect them from undue exploitation from employers. 

Even though California has taken many steps to make it possible for undocumented workers to obtain workers’ compensation, not all of the risks have been mitigated and it would be up to each individual to make their choice on whether they would actually take the avenue of issuing a claim, or prefer not to. There is, however, the third option of settling the claim with your employer or their insurer. That option could provide you with the financial relief necessary while also avoiding drawing any unnecessary attention.

Regardless of the path that you decide is right for yourself, or precisely during the process of making that decision, getting a consultation from an attorney is important in terms of fully understanding your options and protecting your interests. If you or a loved one are faced with such a difficult choice, you can contact a Workplace Injury Lawyer Los Angeles from our team, who will discuss the facts of your case with you, and help you in making an informed decision. 

Our attorneys are highly experienced in all areas relating to workers’ compensation, and should you wish to proceed, they will be able to assist you in all stages of your claim, as well as help you obtain the maximum amount of benefits that you would normally be entitled to regardless of your immigration status.