Undocumented Workers and Third Party Claims

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.

Workers Compensation

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.

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.