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Employers are citing a U.S. Supreme Court decision to argue against paying workers' compensation benefits to illegal aliens, a portion of the population estimated at 8 million to 15 million strong.

Some in the workers' comp community say workers employed under false pretenses should not be entitled to the same rights as legitimate employees. Others note that employers could find themselves exposed in the absence of workers' comp no-fault protections.

Though federal law prohibits employers from hiring illegal aliens, many states allow undocumented workers to receive workers' comp benefits for job-related injuries. The Georgia Court of Appeals, for example, awarded benefits to an illegal worker who used fraudulent documents to get the job with her employer.

The employer argued that since federal law makes it unlawful to employ an illegal alien, the employment contract it had with the worker was void. The employer relied on a U.S. Supreme Court decision that said immigration policy bars an undocumented worker from recovering back pay under the National Labor Relations Act.

In some states the payment of workers' comp benefits to illegal aliens is not easily addressed. Despite Florida's inclusion of illegal workers in its workers' comp system, one employer recently found an argument that saved it from liability. In the case, a judge denied benefits to a Mexican worker because he misrepresented his Social Security number on his petition for benefits.

The employer never confirmed this employee's Social Security number because the judge found that the worker used a false number on his application for workers' comp benefits, and thus undermined benefits received.

The Michigan Supreme Court let stand a ruling denying workers' comp to a pair of undocumented workers after their employer discovered their illegal status. Both workers crossed the border illegally from Mexico.

In theory, Pennsylvania's law provides workers' comp benefits for illegal aliens. In practice, that's not necessarily the case. Generally, indemnity benefits cease--or shrink--when employers show the injured employee is medically able to work and there is a job available. But a 2002 Pennsylvania Supreme Court case modified the employer's requirement. In such cases, Pennsylvania requires only that the worker is medically qualified.

March 1, 2005

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