Undocumented Injured Workers: a Perspective

• Jurisdiction: California,United States,Federal
• Author: MARIA A. SAGER, ESQ.
• Publication year: 2014
• Citation: Vol. 27 No. 4

Undocumented Injured Workers: A Perspective

MARIA A. SAGER, ESQ.

Oakland, California

An alien is generally considered to be either a legal permanent resident, allowed to work in the United States, or undocumented and not allowed to work in the United States. However, pursuant to Labor Code section 3351(a), the workers' compensation system considers both documented and undocumented aliens to be employees. This article focuses on undocumented injured workers.

Why should we care about these injured workers, aside from its being the right thing to do? For starters, according to the Public Policy Institute of California, it is estimated that in 2010 California was home to 2.6 million undocumented immigrants, 1.8 million of whom were employed. As a result, chances are you will eventually handle claims undocumented injured workers have filed.

What My Experience Has Taught Me About the Undocumented Injured Worker

Over the last 12 years I have represented many Spanish-speaking injured workers, some of whom were undocumented. During my initial meeting with these clients, a large number of them disclose to me they are in the U.S. undocumented. Whenever I hear these words I review with the client the parts of the Labor Code that entitle undocumented workers to workers' compensation benefits. I can feel the tension in the room disappear each time I have this conversation. It is one of the most rewarding parts of my job.

Recently, one of my undocumented clients told me his employer of 11 years learned my client had been injured on the job. The employer, who was aware the worker was in the U. S. without documentation, told him he could not file a workers' compensation claim because he was undocumented. His employer also told him he would be fired and deported to Guatemala, his country of origin, if he filed a workers' compensation claim. My client remembers thinking that what his employer was saying did not sound humanitarian. How could he work for an employer for 11 years and get no benefits whatsoever after being injured on the job, when he desperately needed medical treatment and money to support his family? Luckily, this undocumented injured worker confided in the General Consul of the Consulate of Guatemala, who strongly encouraged him to talk with a lawyer to learn what his rights really were. That is how he came to me.

After talking with many undocumented injured workers, I understand why a significant number of them do not want to file workers' compensation claims even though they have the right to do so. If they believe their employer might report them to immigration authorities for filing a workers' compensation claim, they might decide not to file one. If the employer reports them to the immigration authorities and those authorities follow up, the reality is that the undocumented injured worker might be deported. Worse, an undocumented worker who used a false social security number or green card to obtain a job might be charged criminally, deported, and prohibited from ever returning to the U.S. These consequences are huge. Those who enter the U.S. undocumented—a dangerous proposition—do so with the hope of providing better lives for themselves and their families. Being deported to their country of origin could be devastating for themselves and their families.

In addition, undocumented injured workers who witness coworkers getting fired after filing workers' compensation claims might decide not to file one because of the risk of being fired. Although I advise my undocumented injured worker clients that they can file a Labor Code section...