Federal workplace protections apply to all workers, even undocumented ones, P.2Friday, May 6, 2016
In our last post, we began looking at the problem of workplace injury and death as it impacts undocumented workers. As we noted, undocumented workers are particularly at risk for workplace injury because companies that benefit from their labor often assume they can hang over their heads the threat of deportation. The reality is that employers are bound by workplace safety rules regardless of the citizenship status of their workers.
Not only that, but employers are actually bound, under New York law, to provide undocumented workers benefits under the state’s workers’ compensation law. Undocumented workers are entitled to all the same workers’ compensation benefits as ordinary workers, with the exception that the dependents of undocumented workers living in foreign countries are limited to the worker’s surviving spouse and children. In the event there is no surviving spouse or children, dependent benefits go to a surviving father or mother whom the employee has partially or totally supported for at least a year preceding the accident.
That being said, undocumented workers are held to the same requirements and limitations in seeking workers’ compensation benefits, including the exclusive remedy rule. Under the exclusive remedy rule, injured workers are generally limited to obtaining relief from an employer through the workers’ compensation system, and there are only limited circumstances in which an injured worker may pursue personal injury litigation against an employer for the employer’s contribution to the accident.
Undocumented workers who have been injured on the job need to understand their rights and should work with experienced legal counsel to ensure they receive the compensation to which they are entitled under the law.
New York Consolidated Laws, Article 2; Section 17
Business Insurance, “Illegal immigrants covered by N.Y. workers comp exclusive remedy: Court,” Sheena Harrison, Feb. 14, 2014.