Skip Ribbon Commands
Skip to main content
Home


Illegal Aliens

Discussion if illegal aliens (undocumented workers) are entitled to workers compensation benefits and summary of IRCA.

The Indiana WC statute does not specifically address illegal aliens (undocumented workers). The statute defines an employee as follows:
"Employee means every person, including a minor, in the service of another, under any contract of hire or apprenticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation, or profession of the employer.” Reference IC 22-3-6-1 (b)
In cases before the WC Board, although each case is considered separately, in general the Board has granted medical and impairment benefits, but not wages.
 
 
Indiana Court Cases
 
Noe Escamilla v. Shield Sexton Company
The Indiana Court of Appeals ruled against a Mexican man who sought to recover lost income after he was permanently injured at a construction job site in Crawfordsville.
The appeals court ruled Noe Escamilla, who moved to the United States illegally as a teenager, could not present expert testimony on his future lost wages based on U.S. dollars. (No. 54A01-1506-CT-602, March 31, 2016). The expert, in preparing her report on Escamilla's lost earnings, did not take into account his status as an undocumented immigrant and his risk of deportation, according to the opinion.
 
The appeals court upheld pretrial rulings by a Montgomery Superior Court judge, who decided  that because Escamilla could not legally work in the U.S., he could claim lost wages based only on what he would've made in Mexico, his home country.
Note: An Indianapolis Star online article dated 11/22/2016 reports that the case is pending hearing at the Indiana Supreme Court.
 
Garcia vs. Owens Corning
An unpublished Indiana Court of Appeals case, Garcia vs. Owens Corning (No. 93A02-0302-EX-98, January 30, 2004), the court ruled that Garcia, an unlawful resident who did not have a valid social security number, was not entitled to TTD benefits. The decision is based on IC 22-3-3-7(c)(5) which permits an employer to terminate TTD payments when the injured employee is unable or unavailable to work for reasons unrelated to the injury. Garcia did not possess a valid social security number, which prohibited him from returning to work.
 
Garcia raised a public policy issue which the court believed should be addressed by the legislature. The issue: "whether an employer may use the services of an illegal immigrant for whom the employer should have known or could have known was illegal, and dismiss him when he is injured with no further TTD benefits."
 
General Discussion
An article in March 2006 on the website of the American Association of State Compensation Insurance Funds titled "Illegal Aliens And Workers’ Compensation" provides a good explanation if illegal aliens are entitled to workers compensation benefits under state law.

An excerpt from the report's conclusion:
"While a number of state courts have found illegal aliens entitled to workers compensation benefits, notwithstanding the IRCA, many highest state appeals courts have yet to address the issue."
A more recent article in November 2008 on NAMIC's website titled "Illegal But Still Covered" updates some recent state court decisions on the matter and suggests what insurance companies can do:
"...courts in Arizona, California, Rhode Island, South Carolina, and Maryland among others have ruled in favor of allowing illegal immigrants workers’ compensation payments. In fact, only two states – Idaho and Wyoming – have statutes that expressly exclude illegal immigrants from receiving these benefits."
 
"The Federation for American Immigration Reform believes an employer should be held responsible for the cost of workers’ compensation if the employer knowingly hires an illegal immigrant and that person suffers an injury."

Pros and Cons
"Traditionally, those who argue against awarding benefits believe that undocumented workers should not be entitled to benefits because they are not legally working and are, therefore, not lawful employees. Those in favor of awarding benefits to non-resident aliens argue that awarding benefits assures that employers are not offered an incentive to hire illegal aliens and avoid liability."

Immigration Reform and Control Act of 1986 (IRCA)
Highlights of the Act:
  • unlawful for a person or other entity “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U.S.C. 1324a(a)
  • unlawful for a person or entity “after hiring an alien for employment . . . to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8 U.S.C. 1324a(a)
  • requires employers to verify that their employees are authorized to work in the United States by examining certain types of documentation (e.g., drivers’ license) and having the employees execute an employment eligibility verification (I-9) form. 8 U.S.C. 1324a(b).
  • unlawful for an unauthorized alien to tender “any forged, counterfeit, altered, or falsely made document” or “any document lawfully issued to or with respect to a person other than the possessor” to the employer during this verification process. 8 U.S.C. 1324c(a)(1)-(3)
 
Data
The Migration Policy Institute attempts to measure unauthorized population in its online chart Profile of the Unauthorized Population: Indiana.
 
12/2007
As reported in the National Underwriter, January 14, 2008 edition, the South Carolina Supreme Court ruled that providing benefits to injured illegal alien workers does not conflict with federal law, and “disallowing benefits would mean unscrupulous employers could hire undocumented workers without the burden of insuring them” and would be encouraged to hire them, the court found. 

The unanimous court decision referred to a North Carolina court decision that the federal Immigration Reform and Control Act (IRCA) does not bar WC benefits, noting that “other state courts (Florida, Georgia, Maryland and Minnesota) have ruled the same way.” 

The court further referenced a congressional report saying IRCA was not intended to diminish labor protections in existing law, adding it “contains no specific provision forbidding workers’ compensation benefits to illegal alien workers.”

 

10/20/2007
Rhode Island Judge Awards Workers' Comp to Illegal Immigrant

The judge issued a preliminary order awarding workers' compensation to an illegal immigrant who suffered severe facial injuries in a chainsaw accident last year while working for a tree services firm, but who was deported to Mexico last year before he could pursue his case.

 

Related Files

The material in this document has been prepared and shared for informational purposes only and should not be relied upon as legal advice on any particular situation.