Undocumented Injured Workers Need Extra Vigilance From Their Attorneys

Undocumented injured workers must be ready to avoid potential immigration consequences when claiming workers’ compensation benefits . Their attorneys must know the worker’s rights and options under the Immigration and Nationality Act (“INA”) as well as the Labor Code.

California Law Protects All Workers

The Labor Code defines employees as specifically including undocumented workers. Lab. Code sec. 3351. Labor Code sec. 1171.5 makes clear that with the exception of the right to reinstatement, immigration status is irrelevant to all other rights and remedies available under the law.

As such, questions directed to injured workers that go to immigration status or authority to work are not only irrelevant to the workers’ comp action but may also be subject to the 5th Amendment privilege against self-incrimination and therefore should not be answered, especially on the record.

And yet, during the discovery phase of the case, other questions are often asked of the injured worker that, while seemingly innocuous, may still have the potential to negatively impact an undocumented worker’s pending or potential immigration case.

Issues Related To How Employment Was Obtained

The defense in a worker compensation case has a legitimate right to conduct discovery by, for example, taking the worker’s deposition – a question and answer session where the injured worker answers questions under oath. But depositions can be peppered with questions that an undocumented worker should avoid answering or ought to answer in a way that best avoids unintended consequences.

Generally, an undocumented worker should never answer questions asked by defense counsel that have to do with how employment was obtained. First, this is irrelevant to the issues that matter in a work comp case. Second, the answers could subject the worker to criminal or immigration sanctions.

For example, if the undocumented worker made false statements on federal employment forms, this could be charged as fraud and may subject the worker to both criminal and immigration consequences. And severe immigration penalties would attach to an admission by the worker that he or she falsely claimed to be a U.S. citizen in order to obtain employment.

Similarly, answering questions that detail how a Social Security Number was obtained or who it may belong to are similarly irrelevant and problematic for the undocumented injured worker. Answers to these questions may be used against the worker in criminal proceedings under Cal. Penal Code sec. 529 [impersonating another person] or sec. 530.5 [illegal use of another’s personal information] or under federal criminal statutes.

And even though successful criminal prosecution under these laws may be difficult especially if the worker did not knowingly use another person’s Social Security Number, answering these types of questions may still carry immigration consequences.

For these reasons, an attorney hired by an undocumented injured worker must be aware of these potential issues and be ready to defend the applicant from questions that could pose problems for the worker outside of the workers’ compensation context.

Immigration-Related Issues

Another common line of questioning that comes up in a workers’ compensation benefits deposition is about travel to and from the United States.

Usually, the issue behind these questions is apportionment – whether any other injury or injuries suffered by the worker could be responsible for his or her symptoms — a legitimate and relevant issue to a workers’ comp case.

However, for an undocumented injured worker, admitting to absences from the United States can have important consequences to his or her immigration case.

First, testifying to a date when the worker first entered the United States may limit that same worker from later asserting certain defenses or claiming certain benefits under the INA. This is so because many avenues of relief in immigration are dependent on when someone was first present in the United States.

Moreover, testifying to an illegal entry carries immigration consequences as well, for example, 8 U.S.C. sec. 1325 which makes illegal entry an offense punishable by fine, imprisonment or both. Thus, counsel for an undocumented injured worker must be ready to object to these questions if asked and as appropriate.

Second, testifying to periodic absences from the United States may carry even more serious consequences. The most obvious is that repeated illegal entries trigger sections of the INA which could bar the immigrant from the United States for up to 10-years without a waiver. This is commonly referred to as the “permanent 10-year bar” under INA sec. 212(a)(9)(C).

Finally, if the worker has a prior order of deportation and testifies to illegal re-entry thereafter, criminal charges as well as severe immigration penalties may apply.

For these reasons, it is imperative that if an undocumented injured worker hires an attorney to represent him or her in a workers’ comp case that the attorney know about the client’s immigration status. The attorney should also be aware of how the discovery phase in the workers’ comp case could negatively impact any immigration case the client may have now or in the future.

Can Undocumented Workers Get Workers Compensation Benefits?

Undocumented workers are indeed eligible to receive workers compensation benefits if they suffer a workplace injury. Federal law and most state labor laws explicitly protect all employees, regardless of immigration status, ensuring that undocumented injured workers have access to medical treatment, disability benefits, and compensation for lost wages related to work-related injuries.

This means that undocumented immigrants can file a workers compensation claim and seek legal advice to secure these benefits without fear of discrimination based on their immigration status.

State workers compensation laws typically define “employee” broadly, which includes undocumented workers, granting them the same rights as other workers to report injuries and receive medical care and medical expenses coverage.

Employers are legally required to provide a safe workplace and comply with occupational safety and health standards to prevent dangerous workplaces and minimize the risk of injury to all workers, including noncitizen workers.

Despite these protections, undocumented workers often face challenges such as employer threats, retaliation, or intimidation, sometimes from unscrupulous employers who may attempt to exploit their legal status.

However, the National Labor Relations Act and other federal laws protect undocumented workers’ labor rights, including the right to organize, file workers compensation claims, and report unsafe working conditions without fear of retaliation or immigration enforcement actions.

It is important for undocumented injured workers to seek legal advice from an immigration attorney or workers compensation lawyer who understands the intersection of immigration law and labor rights.

These professionals can help protect noncitizen workers from employer retaliation, navigate the complexities of filing a workers compensation claim, and ensure workers receive the medical attention and additional compensation they deserve.

In some cases, undocumented workers may also qualify for temporary protection programs such as deferred action, which can provide temporary protection from deportation while pursuing their workers compensation claims.

Additionally, partnerships between state workers compensation boards and homeland security agencies have been established in some states to prevent immigration enforcement actions against workers who file legitimate claims.

Ultimately, regardless of immigration status, undocumented injured workers have legal rights to workers compensation benefits and should not remain silent about workplace injuries. They deserve access to medical care, coverage of medical bills, disability benefits, and fair compensation for lost wages caused by work-related injuries.

Additional Resources Provided By The Author

Attorney Espinoza is experienced in both workers’ compensation as well as immigration matters. If you’ve suffered a workplace injury and need advice and counsel, call us for a free consultation: 213-667-0701.

Disclaimer: the foregoing is intended to provide general information only. It is not legal advice about yours or any particular case and is not to be acted on as such. Each case is different and dependent on its own particular facts and circumstances.

The information presented may also not reflect the most current legal developments. An attorney should be contacted for advice on a specific case and/or legal issue. This information also is not intended to and does not in any way create an attorney-client relationship.