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Illegal Aliens: Are They Entitled to Workers' Compensation Benefits?

 

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' compensation benefits.

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.

New York

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...."

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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).

Pennsylvania

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 steel beam.

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."

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Finally, the Commonwealth Court surveyed and cited the following cases in other jurisdictions:

  1. 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 receiving benefits);
  2. 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;
  3. 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
  4. 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).

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Virginia

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.

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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 injured workers."

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.

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