Can Undocumented Workers Collect Workers Compensation in California?

Millions of undocumented immigrants live and work in the United States.  Nearly one-quarter of these immigrants call the state of California home, where they constitute 6% of the population according to the Public Policy Institute of California.  One in ten California workers is an undocumented immigrant, many of which work in particularly dangerous occupations like agriculture and construction, where proximity to dangerous equipment and chemicals, combined with lax enforcement of safety standards contribute to significant rates of occupational accidents.immigration law

And yet, many undocumented workers assume that they don’t qualify for workers compensation benefits, or are afraid that filing for workers compensation may expose them to punishment or deportation.  Fortunately, California has long recognized the reality and importance of the undocumented working population, and has made moves to provide protections and rights to injured undocumented workers despite Federal restrictions.  Here’s what you need to know about undocumented workers and workers compensation in California.

The Immigration Reform and Control Act (IRCA)

Much of the fear of filing for workers’ compensation or other benefits has to do with a Federal law passed in 1986 known as the IRCA.  Branded as a law to “preserve jobs for those who are legally entitled to them,” the IRCA made it illegal for employers to knowingly hire or recruit undocumented workers.  Employers found to have established a “pattern or practice” of hiring undocumented workers could be subjected to fines and other legal sanctions.

The rationale for the passage of the bill was one of deterrence—lawmakers assumed that penalizing employers for hiring undocumented workers would cause them to abstain from the practice.  Reduced availability of jobs to undocumented workers would then discourage people from immigrating to the United States in search of work in the first place.

In practice, the IRCA did not have much of an affect on the numbers of undocumented workers.  However, because the publicity that the law brought to the ‘problem’ of undocumented workers further stigmatized this already marginalized group, many employers used the opportunity to justify paying even lower wages to their undocumented employees—who were already largely exempt from minimum wage protections.

Undocumented Workers in California

Recognizing that the IRCA could be used to justify illegal or discriminatory practices towards undocumented workers, California has passed laws to provide protections to these workers in spite of the federal position on the matter.

In 2002, the California legislature passed a law mandating that undocumented workers were covered under “all protections” afforded to documented workers under state and federal law.  This includes protections relating to matters such as overtime and anti-discrimination, as well as entitles undocumented workers to workers compensation coverage.

Since the 2002 law, California courts have consistently applied a liberal view of the rights undocumented workers are entitled to.  In general, the court has ruled that as long as the employer was not aware of their employee’s undocumented status, the employee is entitled to workers compensation, disability payments, back wages, and other related benefits.  However, if the employer knowingly employed an undocumented worker, the employment relationship was illegal and employee claims for compensation might be complicated.

In general, workers are legally entitled to workers’ compensation if they are injured on the job, regardless of their immigration status.

Will Claiming Benefits Result in Deportation?

Even if they know that they can technically file for workers’ compensation, many undocumented workers fear that the process will flag them as undocumented, making themselves visible to immigration authorities and at a higher risk of deportation.  In order to provide injured undocumented workers some (albeit limited) protection from this risk, the California Division of Labor Standards Enforcement has implemented a policy to never question the immigration status of applicants.  The political climate of the last few years and increased scrutiny on undocumented immigrants has forced California to take hard stances to protect applicant information, including restricting ICE agents from entering Labor Commission buildings without a warrant, and issuing formal requests to the federal Department of Justice to prevent ICE agents from lurking around courthouses in search of undocumented immigrants.  A bill that would ban ICE agents from entering government buildings without a warrant (SB 349) was vetoed by Governor Jerry Brown last year, but similar bills to protect undocumented immigrants are still making their way around the legislature.

If You’ve Been Injured at Work, Hire a Knowledgeable Workers’ Compensation Attorney

At The Dominguez Firm, we believe that every worker deserves the full protection of the law, regardless of his or her immigration status.  Our workers’ compensation attorneys are experienced in assisting undocumented injured workers successfully file claims for their injuries, without fear of risk related to their immigration status.  Call today for a free consultation with a Dominguez Firm workers’ compensation attorney at 800-818-1818, and find out how we can help you.

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