Can I Still File a Worker’s Compensation Claim if I’m Undocumented?

In the United States, according to the Department of Homeland Security, undocumented immigrants make up around 4 percent of the population. In states closer to the borders, undocumented workers can make up to ten percent of that state’s workforce. With so many undocumented workers in the workforce, it is almost inevitable that those workers will get hurt. Actually, it is almost more likely that those workers will get hurt as some employers may expect them to do more dangerous jobs for less pay because they believe they will be less likely to report work injuries.

However, can undocumented workers actually receive workers’ compensation? The answer will likely surprise both employers and undocumented workers alike. The truth is that, yes, undocumented workers are actually entitled to workers’ compensation if they are hurt at work. This right was established by the Minnesota Supreme Court in  Correa v. Waymouth Farms, Inc.,664 N.W.2d 324, 328 (Minn. 2003) where the Court found that undocumented workers can receive wage loss benefits conditioned on a reasonable and diligent job search.

How Employer Will Try to Deny Undocumented Workers

There are two common tactics that employers use in order to try and frighten or persuade undocumented workers out of claiming worker’s compensation for their injuries. The first is the most obvious one, they will insist that if their undocumented status is discovered in court proceedings, they will be deported.

The reality is that when a workers’ compensation case is taken to court, the worker’s legal status is considered irrelevant and not discoverable. This means that your status as a citizen has nothing to do with the case and you cannot be punished for it by claiming workers’ compensation.

The second way that an employer will try to scare undocumented workers out of making a workers’ compensation claim is to use the Immigration Reform and Control Act (IRCA). This act states that undocumented immigrants are not legally authorized to work in the United States. Your employer may use this to suggest you aren’t entitled to workers’ compensation and that you may even be detained for reporting it. This issue is presently before the Minnesota Supreme Court in Sanchez v. Dahlke Trailer Sales, Inc., Minn: Court of Appeals 2016. In the Sanchez case, the Employer argued that requiring it to continue employing an undocumented worker, after discovering the worker’s immigration status, would violate federal law. Id. The Court of Appeals rejected this argument, opining that the purpose of IRCA was to prevent employers from hiring undocumented workers, and that allowing an employer to escape potential liability under Minn. Stat. § 176.82, subd. 1, on the basis that the worker is undocumented does not discourage the employer from hiring undocumented workers at the outset. Id. The matter has been appealed.

Under the act, there are heavy sanctions in place for employers who hire undocumented workers knowing they are not legal citizens. If it is discovered that they hired unauthorized employees, it could cost them fines of up to $10,000 per person.

When Aren’t Undocumented Workers Entitled to Workers’ Compensation?

While an undocumented workers status is irrelevant in the workers’ compensation case, there are some circumstances in which they may not receive worker’s compensation. On a federal level, strictly speaking undocumented workers don’t count as actual workers. However, many states, including Minnesota, have state-level laws in places that protect the benefits of injured workers including undocumented ones.

However, there are other states, like Wyoming, where undocumented workers don’t count as employees. Other circumstances where undocumented workers might not get benefits for their injury include the typical exemptions that even legal workers have to deal with including that the accident didn’t technically happen while at work or on the clock, they were under the influence at the time, or they we doing non-work-related activities. Undocumented workers are treated the same as documented workers under Minnesota law.

What to Do?

If you are an undocumented worker and were hurt at work, you shouldn’t be afraid of losing your job or being deported away from your family. Many employers will not risk the threat of an investigation and they want to avoid paying huge fines. However, it is best to talk your options out with a lawyer. If you are in Minnesota and fear that your undocumented status and work-related injury may threaten your livelihood, contact us today and see what the Law Office of Joshua Borken can do to help you.