New York City Undocumented Worker Injury Lawyers

New York City Undocumented Workers: Know Your Rights

Undocumented workers are often asked to do the most dangerous jobs, especially at construction sites. As a result, they suffer more work-related injury and death than native-born workers. Because they are afraid of losing their jobs or being punished or deported, undocumented workers rarely complain about unsafe or unhealthy employment environments.

If you are an undocumented immigrant working in NYC, you have certain rights if you are hurt on the job. The New York construction accident lawyers at The Orlow Firm can help you understand the law and will fight for your right to receive compensation for work-related injuries. Call (646) 647-3398 or contact us online for a free consultation.

In 2010, foreign-born workers made up 15.8 percent of the U.S. labor force, nearly half of them Hispanic and more than a fifth of them Asian. The foreign-born are more likely than native-born workers to be employed in service occupations like transportation, construction and maintenance. Foreign-born workers are also more likely to perform high-risk jobs, possibly because they are unwilling to refuse these assignments for fear of being fired.

Foreign-born Hispanic workers are especially at risk of employment-related injury. From 1992 to 2006, their rate of work-related deaths was consistently higher than for other workers. Many of these fatalities occurred in the construction industry. Along with the fact that foreign-born Hispanics are more likely to hold high-risk jobs, they often have inadequate knowledge and control of recognized safety hazards, inadequate training, and poor supervision which is often made worse by differing levels of language and literacy skills among groups of non-native workers.

Federal Law

Courts in New York have ruled that if you are injured on the job, you should not be deprived of legal help and financial benefits just because you are undocumented.

Third-Party Lawsuits

On a construction site, your employer might hire contractors or other individuals to perform certain jobs that it does not have the skilled workers to do. At times, you may be injured because a contractor or someone other than your employer is careless or negligent at the site. In New York, you have a right to file a third-party lawsuit for damages against the contractor or person other than your employer whose negligence results in your being hurt in the workplace.

Third-Party Claims

Jose Madeira was working as a roofer at a development site in Monroe, N.Y. when he fell from the top of a building. He sustained serious injuries, required four surgeries and three hospitalizations and was substantially disabled. Madeira filed a third party lawsuit against the general contractor and construction site owner for violating New York’s workplace safety laws. In this case, the court ruled that IRCA did not prevent an injured, undocumented worker from recovering lost wages. Although Madeira’s employer had knowingly hired him in violation of IRCA, Madeira himself did not do anything to violate the law.

Later cases have held that illegal aliens may be barred from receiving back pay or lost wages when they knowingly submit false work authorization. Third party lawsuits by undocumented workers require a careful examination of the facts by an attorney who knows this area of law.

Because foreign-born workers are exposed to elevated risk of injury and death, it is important that they have access to the courts when they seek recovery for their injuries. As one court has held, to refuse them creates an incentive for unscrupulous employers to target illegal aliens for work in the most dangerous jobs and to provide them with substandard, unsafe working conditions.

Workers’ Compensation

Workers’ compensation provides injured employees with payments for medical expenses, financial benefits, back pay and lost wages. In New York City, you may file for these benefits even if you are an undocumented worker. However, if you knowingly submitted false work authorizations, you may be prevented from seeking benefits. It is very important that you discuss your workers’ compensation claim with an attorney who has a thorough knowledge of the law.

Employers often knowingly hire undocumented workers because they think they can legally get away with not paying for workers’ compensation insurance. Fortunately, courts in New York have ruled that employers must not be allowed to exploit undocumented immigrants by denying them the chance to file for workers’ compensation. If you are hurt on the job in NYC, you have the same rights as any other worker to seek compensation for your pain and suffering, medical costs and lost wages. If you are injured by a third party on the job, you are as entitled as any other employee to file a lawsuit in civil court for damages.

When undocumented workers are injured on the job, state law determines whether they will be awarded Workers Compensation benefits. Under the Immigration Reform and Control Act (IRCA) it is unlawful for employers to knowingly hire illegal aliens and unlawful for illegal aliens to submit false or forged identity documents to obtain employment.

Some states, like New York, allow undocumented aliens to receive Workers Compensation while others prohibit it as being contrary to IRCA. Regardless of entitlement to benefits, courts have held that illegal aliens have the right to file a case in civil court when they are injured on the job by someone other than their employer or co-employee.

The question of whether illegal immigrants can receive Workers Compensation is a complicated and unsettled one. Under federal law, the Immigration Reform and Control Act (IRCA) makes it unlawful for employers to knowingly hire an unauthorized alien. IRCA also prohibits unauthorized aliens from submitting false or forged identity documents in order to obtain employment. The issue of entitlement to benefits remains unresolved because states have their own Workers Compensation laws and there are no clear guidelines as to how to interpret, apply and accommodate federal law.

States Split On The Issue

The U.S. Supreme Court has declined to rule on whether the prohibition against hiring illegal aliens automatically prevents them from being awarded Workers Compensation benefits. In the absence of a definite federal mandate, states are left to decide the issue for themselves. Virginia’s highest court concluded that illegal aliens do not qualify for Workers Compensation because they cannot legally enter into a contract of employment. Wyoming and Idaho restrict the payment of Workers Compensation benefits to legal aliens. Florida disqualifies Workers Compensation applicants who submit false or misleading statements about their identity in order to obtain employment.

Other states, such as Ohio, have interpreted their state Workers Compensation statutes as including illegal aliens in benefit eligibility. New York has also construed its statute to permit payments to undocumented workers. Courts in Louisiana, Pennsylvania, Georgia and Minnesota have ruled that IRCA does not override their own jurisdictions’ Workers Compensation laws in allowing benefits to illegal immigrants.

Does Excluding Illegal Immigrants Cause Problems?

Many state courts believe that excluding illegal aliens from eligibility for Workers Compensation creates a financial incentive for employers to hire undocumented immigrants. Such practices directly contradict the stated purposes of IRCA. Further, granting employers immunity from paying Workers Compensation benefits to illegal aliens makes them less inclined to maintain safety in the workplace.

Wyoming, for example, which prohibits payment of Workers Compensation benefits to illegal aliens, has a worker death rate three and a half times higher than the national average. Growth in the oil, gas and mining industries has drawn thousands of people to Wyoming in search of high-paying, albeit highly dangerous, jobs. Because these workers so often have no fixed residence in the state they fear they will be fired if they complain of safety problems. They are also hesitant to file lawsuits or report their injuries. Wyoming may or may not be hiring illegal immigrants for these very hazardous jobs but the state’s employers are clearly lacking in accountability for proper worksite safety procedures.

State Workers Compensation laws appear to be at odds with federal immigration law in the treatment of undocumented workers who are injured on the job. However these issues are resolved, the principal concern is worker safety, regardless of national origin.

Undocumented Workers Frequently Asked Questions (FAQ):

I’m An Illegal Alien, Can I Sue For My Work Injuries?

When an illegal alien is injured while working at a construction site, they should still seek legal help — their immigration status does not diminish their right to compensation.

If you are an undocumented worker in the U.S. and you are injured on the job, you can file a lawsuit in civil court to recover damages. There are two limitations on your right to sue. First, the injury must have been caused by someone other than your employer or co-worker. Second, the documents you submitted to obtain work authorization must not contain false statements knowingly made by you.

Foreign-born workers in the U.S. often work in transportation, construction, and maintenance. Because these types of occupations are often dangerous, immigrant workers are more likely than native-born workers to be injured on the job. Furthermore, undocumented workers will often take on high-risk work assignments because they are afraid they will be fired if they refuse.

Under the Immigration Reform and Control Act (IRCA) it is unlawful for employers to knowingly hire illegal aliens and unlawful for illegal aliens to submit false or forged identity documents to obtain employment. As long as you did not knowingly do anything to violate the law, IRCA does not prevent you from recovering lost wages if you are injured on the job, even if you are undocumented.

Can undocumented workers receive workers’ compensation?

New York law does allow undocumented aliens who are injured at work to apply for workers’ compensation benefits.

The reason for the difference in state laws has to do with the federal Immigration Reform and Control Act (IRCA). This law prohibits employers from knowingly hiring undocumented workers. It also makes it illegal for unauthorized aliens to submit false documents to get a job. Federal law does not set guidelines for states to follow in determining whether to allow undocumented workers to apply for workers’ compensation. The result is that states can decide for themselves.

These rules are complicated, however, which is why you should ask an experienced attorney to see if you can apply for workers’ compensation benefits. In addition, an experienced attorney can identify whether you may be able to hold a third party accountable for your damages. A third-party claim for damages can often result in more money damages than workers’ compensation alone.


Contact The Orlow Firm Today

The attorneys at The Orlow Firm are committed to making sure that injured undocumented workers receive all the benefits and compensation to which they are entitled under the law. If you are an undocumented alien and have been hurt in the workplace, contact New York City undocumented work injury lawyers at The Orlow Firm for a free consultation. We have four offices across New York City for your convenience. We can come to you if you cannot come to us.

Call (646) 647-3398 or contact us online.