In Washington and around the country, immigrants, and especially undocumented immigrants do some of the least rewarding work: jobs where the pay is low and the risk is high. Industries with the highest concentrations of undocumented workers are farm labor, building or grounds maintenance, construction, and food service. These workers often endure dangerous and illegal workplace conditions because employers know most undocumented workers will not complain. Nonetheless, undocumented workers who are injured on the job have the same rights to workers’ compensation benefits in Washington as other workers do. It is the employers job to comply with federal and state laws governing the hiring of workers. Once hired they become a worker, subject to workers’ compensation regulations, regardless of immigration status. Workers’ compensation advocates who represent undocumented workers will benefit from understanding the special issues these workers present. This article will serve as an introduction to the topic. It will briefly cover difference between state and federal law that leads to confusion as to whether undocumented workers are entitled to benefits, unique issues for injured undocumented workers in the Washington workers’ comp system, and considerations for attorneys representing undocumented immigrant workers.
Federal versus State Law
On first blush, there appears to be a conflict between the way undocumented people are treated under federal immigration law and how they are treated in Washington’s workers’ compensation system. Federal immigration law states that undocumented aliens cannot lawfully work in the United States and employers cannot knowingly hire them. However, Washington workers’ compensation coverage, and L&I’s administration of the system, is based on the statutory definition of “worker” found at RCW 51.08.180. This statute does not differentiate between documented and undocumented workers so the Department of Labor & Industries (L&I), the agency in charge of workers’ compensation in Washington, has committed to protecting all workers regardless of status.
The apparent conflict with federal law came to the forefront of discussion after the 2002 Supreme Court decision in Hoffman Plastic Compounds, Inc. v. NLRB. In brief, the Hoffman court stated that because an undocumented immigrant was not lawfully allowed to work in the U.S., an award of back pay for wrongful discharge due to union activity would contravene federal immigration law. However, many decisions since Hoffman have limited its application in a variety of contexts. In a number of states (but not Washington) courts have explicitly found that federal law does not preempt workers’ compensation law. For instance, an Illinois court, in deciding whether an undocumented injured worker was entitled to workers’ compensation benefits, analyzed the legislative history of the Immigration Reform and Control Act of 1986 (IRCA) and stated:
[N] othing in the IRCA or its accompanying regulations indicates that Congress sought to supersede state laws providing workers’ compensation benefits to injured employees, whether undocumented or otherwise. To the contrary, the IRCA’s legislative history suggests that the statute was not intended “to undermine or diminish in any way labor protections in existing law.”
Furthermore, there are many strong policy reasons to provide workers’ compensation benefits to undocumented workers. First, if undocumented workers were not eligible for benefits, it would create an incentive for employers, especially those operating in dangerous industries, to hire those workers because the employers could save money on workers’ compensation premiums. Those employers could maintain workplace hazards with little worry that the cost of worker injuries would impact them beyond the cost of replacing workers. This could create dangerous workplaces for immigrant and non-immigrant workers alike. Second, as recognized by the Illinois Court of Appeals, “eligibility for workers’ compensation benefits in the event of a work-related accident can[not] realistically be described as an incentive for undocumented aliens to unlawfully enter the United States.” Third, because the workers’ compensation system in Washington is a quasi-insurance system where rates are charged according to an employer’s track-record and industry risk, covering all workers maintains the integrity of the system and allows for a distribution of costs based on actual use. Workers’ compensation is the appropriate system to cover the costs of on-the-job accidents, rather than social services to which undocumented workers would otherwise turn, adding to the burden for those systems. Finally, when the Washington workers’ compensation system was created, it took an injured worker’s ability to recover costs from an employer out of the jurisdiction of the courts. Prior to the existence of workers’ compensation, injured workers had to sue their employers for the costs of their injuries. The process was expensive, slow, often inadequate for the workers, and uncertain to all parties involved. Washington’s unique response in the evolving case law was to establish “sure and certain relief” for injured workers. Thus undocumented workers are included in the Washington workers’ compensation system, and not forced to take their injuries through the courts, which would replicate the same problem that the workers’ compensation system was established to solve.
The Washington workers’ compensation system protects all workers, regardless of immigration status. The statute defines “worker” broadly and does not exclude undocumented workers. In fact, the law expressly states, “This title shall be liberally construed for the purpose of reducing to a minimum the suffering and economic loss arising from injuries and/or death occurring in the course of employment.” Moreover, L&I’s policy is explicit that undocumented workers are covered by workers’ compensation. In 2002, in response to the Hoffman Plastic decision, L&I’s director, Gary Moore, issued a statement. Mr. Moore wrote, “All workers must have coverage. . . . The agency has and will continue to do [its work] without regard to the worker’s immigration status.”
Special Issues for Undocumented Injured Workers
Undocumented injured workers face unique challenges in accessing and receiving workers’ compensation benefits. To begin with, many undocumented workers fear their status will be discovered if they make a claim for benefits. Undoubtedly, this fear prevents many injured people from seeking treatment and benefits through the system. These fears may be partially assuaged with the information…