Many employers are not fully aware that their employees are eligible for workers compensation even when they are in the United States illegally.
“An illegal alien, meaning someone who has entered the U.S. illegally or is an alien who has entered legally but has lost his legal status and is deportable, does not bar his right to benefits,” warns Taylor Poncz, an attorney with the law firm of Drew Eckl & Farnham.
Some employers earlier attempted to challenge this finding, arguing that the employees have committed fraud by supplying false documents regarding their immigrant status to their employers.
A 2004 federal appeals court decision held that although the goal of the federal law was to reduce incentives for employers to hire illegal aliens, it was not meant to allow employers to avoid workers' comp liability for work-related injuries.
The court’s reasoning was that by not allowing employees access to workers comp because they lied about their status would supply employers with a financial incentive to hire illegal aliens.
Courts generally have upheld this principle, but one case did result in the denial of benefits when an employee requested light duty and then could not produce the proper documents.
Further complicating matters is the fact that it’s illegal for the employer’s attorney to file a report with Immigration Customs Enforcement when the employee is found to have lied or refuses to answer questions about his or her immigration status.
However, Poncz notes that an attorney can report apparent fraud to the Fraud Unit of the State Board of Worker’s Compensation.
“From a practical standpoint, refusing to admit one’s status by pleading the 5th Amendment when asked about a Social Security number may not be enough information for the Fraud Unit to act on, but a proven illegal status coupled with other admissions of fraud could be sufficient, and could result in avoided liability,” she says.