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Can Undocumented Workers Receive Workers’ Compensation?

Undocumented workers are just as likely to be injured on the job as other workers who are legally allowed to work in the United States. However, when they are injured, undocumented workers may be hesitant to apply for the workers’ compensation benefits they are entitled to because they are afraid that will lead to them losing their jobs or being deported. Some workers also argue that undocumented workers should not receive benefits because they are not really employees, as they are not legally permitted to work.

States have their own laws governing workers’ compensation, and can include undocumented employees into the definition of qualifying employees under the law. California’s workers’ compensation law does this, and therefore, undocumented workers who are qualifying employees are eligible for workers’ compensation benefits.

If the undocumented worker is an independent contractor, he or she cannot receive these benefits because they are only available to workers who qualify as employees. In some cases, the employer may improperly label an employee as an independent contractor. In those cases, a court can determine if the employee is properly classified.

If an undocumented worker does not qualify as an employee for workers’ compensation purposes, he or she may still file a personal injury lawsuit against the employer and anyone else who is liable for injuries sustained in a workplace accident. As with workers’ compensation benefits, a person’s immigration status is not a factor in who is allowed to file a personal injury lawsuit in California, and undocumented immigrants can legally file lawsuits.

While the law allows undocumented workers to collect workers’ compensation benefits, it may be difficult to do so in reality. Some employers may threaten to report workers who claim these benefits to immigration officials. This can force workers to forgo important rights in order to avoid deportation. Unfortunately, undocumented workers may be deported even if they have a valid claim against their employer, and the employer’s action in trying to blackmail the worker would not be applicable as a defense to deportation.

However, workers should remember that the employer also faces fines under the federal law for hiring undocumented workers. The employer’s threat may be just that, a threat, because the employer may not want to bring attention to his or her employment practices. Undocumented workers who believe they have a workers’ compensation case should seek advice from a workers’ compensation attorney.

Undocumented workers have additional workplace rights regardless of their immigration status. If an undocumented worker feels unsafe due to workplace conditions, he can file a complaint with the California Department of Industrial Relations.

Contact Us for Employment Related Immigration Issues

All workers should be protected and offered a safety net in case they get injured on the job. Being an undocumented worker in California does not mean that you do not have workplace rights. If you have any immigration issues related to working in the United States illegally, we may be able to provide legal assistance. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California and schedule a consultation.

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