Georgia: Proposal on undocumented workers may protect employers from getting sued
"Montana's proposal goes to the definition of 'employee' and says illegal aliens don't meet the definition of employees. If you're not an employee, you're not covered by the Workers' Comp Act. If you're not covered by the Workers' Comp Act, there's no exclusive remedy; so they can sue in tort," said Rusty Watts, a partner with Swift, Currie, McGhee & Hiers in Atlanta. "Georgia's proposal expressly doesn't touch the definition of employee."
Instead, S.B. 7 adds a code to the law and essentially says in order to receive benefits, a worker has to be in the United States legally. Watts says that means illegal aliens are technically employees and therefore covered by the exclusive remedy provision of workers' comp.
"So, you may be an employee, but to get benefits you have to be legal when you get hurt," he said. "The hard public policy argument is, 'I can't get workers' comp and I can't sue. So I have a right without a remedy.'"
The legislation in both states, however, still leaves open the concern that some employers may seek to hire undocumented workers since they would not have to pay for workers' comp coverage for them.
Georgia and Montana are the latest states to consider proposals addressing undocumented workers. But Watts says they likely won't be the last. "It'll be interesting to see," he said.
Read more at the WorkersComp Forum homepage.
February 17, 2011
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