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Careful What You Wish For: Denying Worker's Compensation for Undocumented Workers


Immigration reform is a continual and vexing issue in Washington. While politicians, lobbyists, and service organizations grapple with potential resolutions, there is no disputing the existence of illegal immigrants working for employers in our country. And when there are employees working, work injuries happen. This may be especially true with the undocumented population who may be more susceptible to significant injuries because many perform more dangerous or hazardous jobs that other may not accept. For further information, see Do Immigrants Work in Riskier Jobs? and the CDC's report on work-related injury deaths among Hispanics.

...excluding illegal immigrants from worker's compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants.

When injured, are these undocumented workers eligible for worker's compensation? Some harshly argue that these workers should receive no benefits, as they are not working legally in the country. However, one of the underlying pillars of worker's compensation is that the expense of workplace injuries (covered by insurance) should be placed on the employers who profit from the workers' labors. Additionally, excluding illegal immigrants from worker's compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants-a practice that is against federal law.

The worker's compensation laws in our country do not have a definitive answer to this question-though the trend is toward coverage of undocumented workers. Many states do allow for complete or partial worker's compensation benefits for injured undocumented workers. For example, the Nebraska Supreme Court recently held that an injured illegal immigrant was eligible for worker's compensation benefits, including loss of earning capacity/permanent total disability benefits.

In Wisconsin, undocumented workers qualify as employees under Wisconsin's workers' compensation system. (Arista-Rea v. Kenosha Beef, 1999 WL 370027, WC Claim No. 1990070904 (LIRC May 5, 1999)). The Wisconsin Labor and Industry Review Commission has awarded temporary disability benefits (i.e. lost time benefits), rejecting employer claims that undocumented workers occupy a different position because they are legally precluded from obtaining other employment until they resolve their immigration status. The Commission noted that undocumented workers routinely find new employment after being terminated, the employer's argument is deemed invalid. The issue of eligibility for loss of earning capacity benefits for Wisconsin's undocumented workers remains undecided.

The jury awarded the undocumented worker one million dollars in non-economic (i.e., pain and suffering) damages.

Unlike Wisconsin, a few states explicitly exclude illegal immigrants from worker's compensation benefits. An example state is Wyoming, which has a statutory exclusion. Wyoming's Law defines an "employee" to include legally employed "aliens authorized to work by the United States department of justice, office of citizenship and immigration services...". Such an exclusion has an unintended consequence: employer exposure to personal injury suits! Specifically, I came across a summary of a U.S. District Court suit from Wyoming: Romero v. Reiman Corp., Claim 11-CV-216-F (D.Wyo 5/1/12). In this case, an undocumented worker was struck by a piece of steel rail and fell ten feet, suffering serious injuries. He was statutorily excluded from the worker's compensation act in Wyoming, so he brought a personal injury suit against his employer in federal court. The jury awarded the undocumented worker one million dollars in non-economic (i.e., pain and suffering) damages.

Thus, I urge caution on anyone or any politician pushing for excluding undocumented workers from worker's compensation coverage. Without worker's compensation, employers are open to being sued in court-with the possibility of significant damage awards.

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