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Workers' Compensation FAQ

Workers' Compensation for Undocumented Aliens?

Workers' compensation is a set of state laws that allow employees who are injured on the job to get compensation for medical bills and lost wages. Whether or not undocumented aliens, also called "illegal immigrants," will be covered by workers compensation will depend on the laws in each state and the way that the courts have interpreted those laws.

In some states, the laws are very clear about whether illegal immigrants are covered by workers compensation or not. The legislature can decide who should be included and who should be excluded. In most cases, however, the state legislature has not spoken to this issue directly so it is up to the courts to determine if the program is supposed to cover illegal immigrants. The courts may look at things like the history of the workers' compensation plan and the laws that have been enacted, in order to determine if illegal aliens are the type of worker that the program was intended to include.

Since workers compensation is for injured "employees," the main question for the courts is usually whether or not the term "employee" includes people who cannot legally enter into a contract to work. Federal law prohibits employers from employing undocumented workers so some courts think that this also means that the undocumented workers cannot be considered "employees" for workers compensation purposes. Other courts have concluded that illegal immigrants, even if not legally entitled to work, can be considered "employees" and are therefore entitled to benefits.

One of the major dilemmas that a court faces in this situation is that, in general, the courts do not like to enforce contracts that have an illegal purpose and usually, the employee-employer relationship is defined by the existence of a contract (this just means an agreement- not necessarily a written agreement). The definition of an "employee" is a person who entered into or works under any contract or apprenticeship with an employer. Since an illegal alien does not have the right to enter into an employment contract and an employer doesn't either, the courts have to decide if they should enforce the contract or not. If they do not honor the contract then the alien will not be an employee and will not be eligible for benefits. The problem is, only the alien will be harmed by the courts refusal to honor the contract but both the employer and the alien were in violation of the law. The employer would have the benefit of the alien's labor but could avoid any obligations owed to the worker. In order to avoid this kind of injustice courts often uphold contracts made for an illegal purpose if both parties were equally culpable. That is assuming, of course, that forcing the parties to honor the contract would produce a more just result.

At this time, there is no consensus in the United States about whether undocumented aliens should be covered by workers' compensation and what benefits they should be entitled to. While some courts think that people who cannot legally work should not have their employment status recognized, other courts think that not calling the worker an "employee" is a mere technicality which may allow the employer and the state to avoid their obligations. Even when illegal immigrants are covered by workers' compensation there are disagreements about what benefits they are entitled to under the plan. It seems the only thing that one can know for sure about workers' compensation for illegal immigrants is that this area of law is unsettled in most states and will continue to evolve.

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