Can a noncitizen without legal authorization to live and work in the United States have access to workers' compensation benefits after a work-related injury? The answer is all over the map: Yes, no, maybe? State courts have varied in lines of reasoning to reach their decisions. According to the National Employment Law Project, courts in nine states have supported the undocumented worker. Courts in four states have decided against such workers.
Who does or does not enjoy the benefits of workers' comp is a peculiarly state matter, and state courts are clearly receptive to conflicting arguments over how federal immigration laws affect these expressly state-mandated benefits.
It is prudent to avoid using the term "illegal alien." That misleadingly implies that a worker who overstayed his or her visa or swam across the Rio Grande has forfeited rights associated with benefits implicit in employment contracts. This is not the case. Such workers have rights.
Unfortunately, our government certainly doesn't clarify matters much when such undocumented workers are the victims of local police in New Hampshire who arrest them for trespassing, or when undocumented workers find themselves the subject of predatory immigration officials in North Carolina impersonating OSHA safety trainers.
While a Supreme Court decision in 2002, Hoffman Plastic Compounds Inc. v. National Labor Relations Board, ruled that some economic benefits are not accessible to undocumented workers, the court did not specifically rule on workers' comp benefits.
Since then, however, a plurality of state courts that have since decided pertinent cases have said, in effect, that states can award benefits to undocumented workers without running afoul of the Hoffman decision. Moreover, a case has been made that if workers' comp benefits are not available, the injured worker can sue the employer under employer liability.
While granting full access to workers' comp benefits will drive up workers' comp costs, the net impact may be less than one might think. That's because many jobs filled by undocumented workers may not be covered by state workers' comp laws to begin with.
In addition some employers, having accepted an undocumented worker's fake papers, may be carrying her or him as an employee, and therefore already paying the workers' comp premiums.
Despite the conflicting signals sent out by state courts on the issue of compensation to undocumented workers we can, in my opinion, expect a gradual expansion of socioeconomic benefits as the undocumented worker's legal status improves.
They will have access, for instance, to a driver's license. But broader benefits like housing and education are more problematic.
In Massachusetts, for example, state courts there have decided in favor of access to schools for children of undocumented workers. But a top aide to Gov. Mitt Romney in late 2005 said that such children should not be accorded cheaper, in-state higher education tuition rates, eliciting a firestorm of protest.
The country's indecisiveness about rights for undocumented workers is not good for occupational safety, the workers' comp system, or the worker. Real progress may require reform in immigration laws, and perhaps some as-yet-uncharted coordination between federal and state laws touching work-injury risk.
But these, as they say in Boston, are third-rail issues, so I'm not expecting a resolution of them anytime soon.
a Vermont-based consultant and writer, is the workers' comp columnist for
Risk & Insurance®.
January 1, 2006
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