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There are millions of undocumented workers in the United States. When an undocumented worker is hurt while on the job, they may have the right to pursue workersโ compensation benefits. This is true even though the injured worker was not legally allowed to work in the United States in the first place. This can be a difficult concept for many employees (and employers) to understand.
According to the Public Policy Institute of California (PPIC), almost one-quarter of the nationโs undocumented immigrants reside in the State of California. In fact, undocumented immigrants make up 6% of Californiaโs population.
Moreover, research states that 7% to 8% of workers in California are undocumented. A disproportionate number of these undocumented workers have positions in especially dangerous fields, including construction work and agricultural farm work. The hazardous nature of this type of work, combined with inadequate safety enforcement, can lead to severe accidents on the job.
When undocumented workers are injured, they often believe that because they are undocumented, they donโt qualify for workersโ compensation or that filing for this financial help will get them deported. California, however, recognizes not only the reality of undocumented workers but also the important role that they play in the stateโs economy.
This is why the State of California has taken serious action to help provide undocumented workers with legal protections, despite the federal restrictions in place. If you are an undocumented worker whoโs been hurt on the job, you can discuss your situation with a California workersโ compensation attorney.
Undocumented Workers: You Are Included In Californiaโs Workersโ Comp Statutes
When an employee is injured on the job, California provides a framework for workers to seek compensation for damages they sustained. After all, that working person was helping to provide the rest of us with goods and services. Because approximately 7% of California workers who are undocumented are just as likely to get injured on the job as anyone else is, the California appeals court determined that injured undocumented workers have access to workersโ compensation benefits like other employees.
While state approaches vary, California has established broad protections for all workers, including undocumented employees. In California, regardless of whether you obtained your job through the proper legal channels, you may be covered by workersโ compensation. The effect of this policy is that it not only encourages employers to comply with the rules and hire employees who are legally employable, but also, and more importantly, discourages employers from taking advantage of undocumented workers. Without such laws, it is easier for employers to discriminate against, take advantage of, and/or abuse undocumented employees.
If you are an undocumented California worker who has been injured on the job, it’s important to understand your rights. Consider consulting with a workersโ compensation lawyer about your options.
Fear & Federal Law
The passage of the Immigration Reform and Control Act of 1986 (IRCA) is the culprit behind much of the fear and trepidation undocumented workers have regarding filing for workersโ compensation. This law was created for the stated purpose of preserving jobs for those โlegally entitled to them.โ With this law, it became illegal for employers to hire undocumented workers or to recruit workers who are known to be undocumented.
Those employers who are found to make hiring undocumented workers a practice or a pattern can be fined and hit with other legal sanctions. In other words, the federal government is serious about its responsibilities. The motivation behind IRCA is deterrence:
- When employers receive penalties for hiring undocumented workers, they’re presumed to be less likely to continue hiring them.
- As fewer openings for undocumented workers become available, undocumented people will be less likely to immigrate to the U.S. in search of employment to begin with.
In reality, however, federal immigration policies have had mixed results, with the undocumented population fluctuating significantly over time. Instead, the Fedโs attention on the matter has only made things harder for undocumented workers by highlighting the predicament and, in some cases, making it easier for some employers to take advantage of this already disadvantaged group. For instance, many employers ran with the chance to pay undocumented workers even less than they were already being paid, due to these employeesโ exemption from minimum wage protections.
California Takes Workersโ Rights Seriously
The State of California recognizes that the passage of IRCA could make it easier for some employers to use discriminatory practices.
As a result, the state has passed laws to protect undocumented workers from loopholes in federal law. In 2002, California passed a law that mandates the same employee protections be afforded to every worker, including undocumented workers.
These protections include minimum wage requirements, overtime pay, anti-discrimination rights, disability benefits, back wages, and workersโ compensation coverage.
California not only passed this 2002 law but also continues to consistently and liberally apply the law regarding undocumented employees. If your employer doesn’t know you’re undocumented, you may have the same protections as other employees. Eligibility for certain benefits can depend on individual circumstances. A qualified attorney can provide advice tailored to your specific situation.
If, on the other hand, your employer is aware of your legal status and hires you anyway, the employment relationship is considered illegal from the outset, and pursuing compensation is likely to be more complicated. Consider consulting with a California workers’ compensation attorney to discuss your legal options.
Undocumented Workers Play An Important Role In Californiaโs Economy
As noted, undocumented workers play a critical role in Californiaโs bustling economy. These workers make up, according to the PPIC, 10% of the stateโs labor force. These workers are important to Californiaโs thriving economy, and the state extends legal rights to them under applicable statutes.
Every Worker Is Entitled To Protections
The California Department of Industrial Relations (DIR) extends certain rights to all workers, including those without documentation:
- Californiaโs state laws protect the wages and working conditions of both documented and undocumented workers.
- Beginning January 1, 2016, undocumented workers should receive a minimum wage of $10.00 per hour.
- Just like every other worker, undocumented workers can seek overtime wages when they work more than 8 hours in a day and/or more than 40 hours in a week.
- Undocumented workers can file complaints regarding workplace safety and health standards with CAL/OSHA.
- When an undocumented worker has a state wage-violation claim, they can file the claim against their employer with the state labor commissioner.
All told, if you are an undocumented worker in the State of California, your employer has a legal duty to provide a safe work environment and is prohibited from retaliating based on your immigration status. If youโre undocumented, and your employer fails to provide you with the basic rights outlined by DIR, consider consulting with a California workersโ comp attorney.
Benefit Claims And The Fear Of Deportation
Even undocumented workers with valid workersโ compensation claims often hesitate to pursue them, fearing that doing so could expose their immigration status and increase their risk of deportation. To provide undocumented farmworkers who are injured on the job some protection (limited though it is) from the risk of deportation, the California Division of Labor Standards Enforcement has a stated policy not to question the immigration status of applicants for workersโ compensation.
While immigration developments have increased the scrutiny that undocumented workers face, the State of California has doubled down on protecting all employeesโ workersโ compensation applications:
- Official policy is that an individual’s immigration status is not to be questioned.
- In 2017, California took a stance against ICE agents entering an investigation without a warrant and requested that they step down when it comes to making arrests around California courthouses.
- California legislators have introduced a bill that would prohibit ICE agents from entering state-owned, leased, or occupied buildings or public schools to conduct surveillance, make arrests, or question people without the necessary warrants.
The State of California does what it can to protect all of its employees. If you are an undocumented worker with a workersโ compensation claim, a California workersโ compensation lawyer can help protect your rights as an employee.
Injured At Work And Undocumented? Consult A California Workersโ Comp Attorney
If youโre an undocumented worker who has been injured at work, it is understandable to have questions or concerns about moving forward with a workersโ compensation claim. Working closely with an experienced workersโ compensation lawyer can help you understand your rights and address any questions you may have. Our workers’ compensation attorneys at Arash Law in California represent injured workers and advocate for their rights, regardless of their immigration status. You can call our office at (888) 488-1391 for more information.
