Immigration And Workers Compensation

Immigration Law Seminar

Final Paper Assignment

Jada Brisentine

November 30, 2006

Undocumented Workers and the Law of Worker's Compensation

United States citizens enjoy an abundance of rights under the American system of labor laws. Such rights include a minimum wage, unemployment, sick leave, worker's compensation, often they include medical insurance and paid vacation. The working American citizen has little to fear from an employer because should an employer violate a worker's rights, an American citizen can seek a remedy in a court of law. This system ensures that as a citizen of the United States, each of us has a right to work under better conditions to provide for our families with the security that should we become sick or injured, the employer will still provide us with the means to survive until such time as we might be able to return to work.

It is an unfortunate truth, however; that not all persons who live and work in the United States are entitled to these labor rights. Undocumented workers or illegal aliens often work long shifts with no overtime, no minimum wage, and at times with out even pay. If they choose to keep their jobs or avoid deportation they are forced to work under harsh or unsantitary conditions. If they become ill, they are expected to continue working or are quickly replaced with some one who will continue to work in their stead. If they are injured, not only do they not have medical insurance because of their status as illegal aliens, in many states, the employer is not required to compensate them for their injuries. In short, the exploitation of illegal workers is a prominate problem in the United States, and a problem that is tragic with out a current solution.

The scope of this discussion will focus primarily on the law of worker's compensation. It will seek to outline the overall purpose of this body of law; which jurisdictions and instances worker's compensation does and does not apply to undocumented workers; and the rationale for its application as provided by relevant case law. Ultimatly, this discussion will invite the policy perspective that workers compensation is not only bennificial to the illegal worker and the more humane option, but is also the better option to help curtail illegal hiring practices by imposing additional cost on employers and therefore a disincentive for employers to hire illegal workers.

Worker's Compensation Law In Brief:

"Worker's compensation is a non-fault mechanism for providing for cash-wage benefits and medical care to victims of work-connected injuries, and for placing the cost of these injuries ultimately on the consumer, through the medium of insurance, whose premiums are passed on the cost of the product"

The basic system of worker's compensation is that an employer is required to purchase worker's compensation insurance for employees. The cost of those preminums will generally be covered in the price of the goods that the employer sales or manufactors. In the event that an employee is injured, s/he is entitled to benefits to cover, loss of wages, medical expenses ect. An employer that provides worker's compensation can not be sued for work related injuries. Statutes that address worker's compensation vary greatly from state to state but the universal concepts are as follows:

a) An employee is automaticly entitled to benefits when s/he suffers a personal injury arising out of and in the scope of employement.

b) Negligence and fault are largely immaterial as it would be in a tort claim. For example if the employer is partially negligent or if the employee is negligent it doesn't matter the employee is still entitled to benefits.

c) Coverage is limited to employees (can be problematic for our purposes)

d) Benefits include one third or one half wage loss; medical expenses including rehabilitation; in the case of death it can include compensation for dependants. Maximum amounts are regulated under the statute.

e) The employee covered under these benefits cannot sue the employer

f) The employee can sue third parties, however the employer can recover benefits from those settlements

g) This system is regulated by agency so procedure tends to be relaxed in order ensure payment.

h) The employer is required to carry worker's compensation insurance usually through private insurance to secure its liability.

It is important to note here that worker's compensation although a social construction, is not a social program such as welfare or food stamps. The cost of implementing such a program falls on the employer as a cost of production and if the employer chooses to past the cost along, then the cost will be reflected in the goods that are produced. So the social costs to a government for allowing this right to apply to illegal workers is virtually nonexistent, while the cost that it will impose on an employer who chooses to hire undocumented workers illegally is substantial due to the increased cost of insurance per employee. Seeing how part of the allure of hiring illegal workers is that it saves the company money because the employer does not have to provide for certain benefits, this added cost coupled with the possible legal sanctions that the employee might impose may provide less of an incentive to hire undocumented workers. In addition, it may provide an incentive for the employer to provide a safer and more sanitary working atmosphere to prevent raises in insurance premiums due to excessive work related injuries.

Despite the policy benefits for allowing worker's compensation benefits to apply to illegal workers, there is a split in jurisdictions as to whether to not illegal aliens should be entitled to such benefits.

Which Jurisdictions allow Workers Compensation for undocumented workers and why:

There have been a number of Jurisdictions on both the state and appellate levels that have concluded that undocumented workers are eligible for worker's compensation