By James P. O'Connor & Sam Mazen
New York State Insurance Fund
In the last few years an interesting public policy argument has
resurfaced - whether illegal aliens should be entitled to workers'
Traditionally, those who argue against awarding benefits believe
that undocumented workers should not be entitled to benefits because
they are not legally working and are, therefore, not lawful employees.
Those in favor of awarding benefits to non-resident aliens argue
that awarding benefits assures that employers are not offered an
incentive to hire illegal aliens and avoid liability.
This article will focus on three specific jurisdictions and their
approach to this issue.
In New York, Section 17 of the Workers' Compensation Law states:
"Compensation under this chapter to aliens not residents or
about to become nonresidents of the United States or Canada, shall
be the same in amount as provided for residents...."
This traditional approach to non-resident aliens is consistent
with the New York statutory framework of awarding compensation "regardless
of any question of wrongdoing of any kind." Post v. Burger
& Gohlke, 216 N.Y. 544 (1916); Testa v. Sorrento Restaurant
Inc., 10 A.D.2d 133, appeal denied 8 N.Y. 2d 705 (1960).
In a case dated April 12, 2000, of "first impression"
for the State of Pennsylvania, the Commonwealth Court of Pennsylvania
considered the Immigration Reform & Control Act of 1986 (IRCA)
as applied to the Pennsylvania Workers' Compensation Act, and held
that an illegal alien was not precluded from receiving workers'
compensation benefits simply because of his immigration status.
Reinforced Earth Co. v. WCAB, 749 A.2d 1036 (2000).
The Reinforced Earth Company had petitioned for review of the Workers'
Compensation Board's order affirming the Workers Compensation Judge's
award of benefits to Juan Carlos S. Astudillo. The claimant, lacking
proper Immigration & Naturalization Service (INS) documentation,
but hired as a maintenance worker by the employer, sustained work-related
head, neck, shoulders and upper back injured when struck by a heavy
Seeking to negate the claimant's ability to establish the employment
relationship predicate to receiving benefits under Pennsylvania's
Workers' Compensation Act, the employer contended that the IRCA
barred the employment of illegal aliens, compelling a finding by
the court that the claimant was not an "employee" under
Pennsylvania's Act. The court concluded, to the contrary, that the
IRCA was enacted to prohibit employers from hiring individuals who
were illegal aliens and required, in furtherance of this goal, that
the employers make such a determination prior to offering employment.
The Pennsylvania court further reasoned that "'public policy'
would not be served to deny benefits to an illegal alien merely
because of their immigration status at the time of hire, or even
cause employers to actively seek out illegal aliens rather than
citizens or legal residents."
Finally, the Commonwealth Court surveyed and cited the following
cases in other jurisdictions:
- Mendoza v. Monmouth Recycling Corporation, 288 N.J. Super.
240, 672 A.2d 221 (N.J. Super 1996) (the state workers' compensation
statutory scheme did not expressly preclude an illegal alien from
- Artiga v. M.A. Patout & Son, 671 So.2d 1138 (L.A.
Ct. App. 1996) (the Louisiana Workers' Compensation Act does not
expressly exclude illegal aliens from its definition of employee
and, as such, it does not exclude illegal aliens from securing
workers' compensation benefits when justified;
- Lang v. Landeros, 918 P.2d 404 (Okla. Ct. App. 1996)
(because there is no express provision of the Oklahoma Workers'
Compensation Act precluding compensation for an employee who is
an illegal alien, such an employee is entitled to benefits); and
- Gene's Harvesting v. Rodriguez, 421 So.2d 701 (Fla. Dist.
Ct. App. 1982) (where Florida statute specifically includes aliens
among those "employees" entitled to benefits and nothing
in the statute suggests that workers not lawfully immigrated are
excluded, illegal aliens are not precluded from receiving benefits
for work-related injuries).
The previous year, in a case decided January 8, 1999, the Supreme
Court of Virginia also considered the IRCA as applied to a claim
for workers' compensation benefits of an illegal alien, but unlike
the court in Pennsylvania, affirmed a decision of the Workers' Compensation
Commission denying benefits to claimant Jose Ismael Granados because
he misrepresented his immigration status. Jose Granados v. Windson
Development Corp., 257 Va. 509; S.E.2d 290 (1999).
The claimant, lacking proper INS documentation (in fact, presenting
forged documents and a signed employment eligibility and verification
form), was employed as a carpenter's helper and sustained a fractured
ankle in a work-related fall. At a hearing before a deputy commissioner
on his claim for benefits, the claimant admitted he had submitted
false documents. His claim was therefore denied on the ground that
he materially misrepresented his employment eligibility. The full
commission and Court of Appeals affirmed the decision.
The Supreme Court first applied its well-settled test for this
standard which, in part, requires a causal relationship between
the injury at issue and the misrepresentation (misrepresenting as
to a physical limitation sustains a denial; misrepresenting as to
prior criminal record will not support a denial) and found the decision
could not be affirmed on this basis. The employer, however, further
argued that the claimant was properly denied benefits because he
was not an "employee" since an illegal alien cannot enter
into an employment contract in the United States and thus the alleged
contract of employment was void and unenforceable. The court reasoned
that a determination of whether the claimant was an "employee"
depended on whether he met the definition of "employee"
in Virginia's Workers' Compensation Act ("every person, including
a minor, in the service of another under contract of hire")
and held that the claimant was not in the service of Windson under
any contract of hire because under the IRCA of 1986, an illegal
alien cannot be employed lawfully in the United States. In a final
passage the court stated that denial of benefits, on this ground,
did not violate the claimant's constitutional right of equal protection,
as the denial results from the claimant's failure to meet his burden
of proving that he was an "employee" under the Act, not
from his status as an illegal alien.
In a negating reaction to this decision, the General Assembly of
Virginia enacted legislation to amend and reenact several sections
of the Code of Virginia: among those, Sec. 65.2-101-Definitions,
amended to read: "Employee means: every person, including aliens
and minors, in the service of another under contract of hire, whether
lawfully or unlawfully employed.... The Bill, HB 1036 of the Virginia
2000 Session, was summarized as passed to 'include(s) alien workers,
whether lawfully or unlawfully employed, as employees' within the
scope of the Virginia Workers' Compensation Act. The bill gives
unlawfully employed alien workers the same status under the Act
that unlawfully employed minors currently have." Governor Gilmore
vetoed the bill; his veto was overridden on April 19, 2000. At the
time the American Insurance Association commented, "Without
coverage for all employees, the employer may be exposed to being
sued. Further, employers who hire aliens, unaware of their illegal
status, should not gain a competitive advantage because they escape
the responsibility to pay workers' compensation benefits to those
It is likely that from a public policy standpoint, legislatures
and courts will continue to grapple with the issue of workers' compensation
eligibility for undocumented workers, particularly in states where
this issue is more prevalent. However, it appears that the trend
is toward compensability.