A significant theme in President Trump’s campaign was cracking down on illegal immigration, and he has not been hesitant to follow through on his promise to take action against the millions of undocumented persons living in the United States. Leaving the moral questions aside, the current administration’s policies toward undocumented immigrants raises some questions that have been addressed in state courts in the past, but may be more relevant than ever.
With millions of undocumented immigrants working every day, driving on the highways and going about their business, it is inevitable that they will be involved in accidents at work and elsewhere. Many of these accidents will be someone else’s fault. Does an undocumented immigrant have a right to pursue a personal injury action, collect lost wages or even collect worker’s compensation?
Personal Injury Claims
Courts in several states have allowed undocumented immigrants to sue and collect damages for personal injuries. In New York, for example, the state’s highest court upheld the right of undocumented immigrants to sue for personal injuries in the 2006 case of Balbuena v. IDR (6NY3d 338, 2006). This is good news for Buffalo personal injury lawyers and their clients, but a claimant’s immigration status may still come into play when determining damages, For example, if an undocumented immigrant is permanently injured in an accident, what is the proper way to calculate his potential lost earnings? He is not legally allowed to work in here, so are his lost earnings calculated according to the wage rates in his home country, or here in the United States? Is it even appropriate to award lost wages at all in such cases? A Florida court, in 2008, ruled that a claimant’s immigration status may be a factor to consider when determining an award for lost wages, and a federal court in Orlando ruled that a claim for lost potential earnings could not be made in a wrongful death case involving an undocumented immigrant.
Undocumented immigrants would be well advised to learn more about the laws in their state before pursuing a claim.
When an undocumented immigrant is injured on a job in which he is not legally allowed to work, is he entitled to worker’s compensation benefits? Surprisingly, the answer is yes. Courts in several states have tackled this issue and have determined that undocumented workers are entitled to the same worker’s compensation benefits as United States citizens and permanent residents. While that may seem unfair to legal U.S. workers, it actually makes sense. If employers knew that they were not required to maintain worker’s compensation benefits for undocumented workers, they may be tempted to hire them more regularly in order to save money. Employers should not be rewarded for hiring workers illegally, so they are required to provide worker’s compensation benefits regardless of immigration status.
The issue of how to handle termination of benefits has been the subject of several cases in North Carolina. Let’s take a hypothetical example of Monroe’s Campbell & Associates Law client, who is an undocumented worker that is receiving benefits and is released back to work. In these cases, the employer may terminate the worker’s benefits but is not obligated to re-hire the worker.
Many undocumented immigrants have undoubtedly opted not to pursue personal injury or worker’s compensation claims out of fear of being found out and deported. Given the current administration’s immigration policies, that fear is not unfounded.