Undocumented, and Unprotected? In ND, ‘It’s Not a Retaliatory Firing, That’s the Law’

09.06.2017


By Phil Yacuboski

This is the second article in WorkersCompensation.com's “Undocumented, and Unprotected?” series, as our writers explore what is it like to be an undocumented worker in the U.S., and what it means regarding workers' compensation.

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Fargo, ND (WorkersCompensation.com) – When it comes North Dakota’s illegal immigrant population numbers, the Peace Garden State ranks near the bottom of the list, according to Pew Research. However, while undocumented workers can collect workers’ comp medical benefits, they can’t collect disability.  

“Once an employer finds out that they’ve got someone who’s not legally allowed to work, they have to terminate them,” said Bill Bailey, an immigration attorney with the Swanson Law Office in Grand Forks, ND. “Somebody will often get workers’ comp benefits and then try to go back to work and when they can’t provide the paperwork, the employer is then required to terminate them.”

If the employer chooses not to terminate the employee, they then are in further violation of the law. 

“It’s not a retaliatory firing,” he said, “that’s the law.”

The state will often deny undocumented workers disability benefits after their medical care because they are illegal, according to Stephen Little, a workers’ comp attorney with the Little Law Firm in Bismarck. 

“That’s stupid because how do you think they got hurt in the first place,” Little said.

The North Dakota Supreme Court hasn’t settled any issue when it comes to workers’ comp and undocumented workers. Little said decisions trickle through administrative law judges; something the higher courts have refused to review.

“These people are just left to hang out without any wage loss benefits,” he said. “They get medical care, but no real wage loss.”  

Little, who has handled a few workers’ comp cases involving undocumented workers, said the state should steer clear of immigration issues.

“If it’s a compensable injury, then they are entitled to benefits, regardless of whether they have the proper Social Security number,” he said. “You’ll get your surgery paid for, but you’ll lose everything you ever had because you don’t have any money coming in.”

For others in the state, it is a matter of fairness; so don’t look for the law to change anytime soon, or for changes to Workforce Safety and Insurance, the department that oversees the state’s workers’ comp industry.

“If they are injured and they are undocumented, the minute we find out, we’re going to take action,” said North Dakota Rep. George Keiser, who represents Bismarck. “In doing that, we are preventing the bad actors from creating an unfair competitor in the marketplace.”

Keiser, who has been serving in North Dakota’s legislature since 1993, said because North Dakota is a smaller state, they have the ability to do audits and to monitor workers’ comp fraud where undocumented workers are concerned.

He said employers who have been accused of hiring undocumented workers are limited to a few industries.

“If they are illegally in our state, then the state will remove them,” said Keiser, who chairs the legislature’s Industry, Business and Labor Committee. “The word illegal also means unlawful and therefore, when we discover they are undocumented we take the appropriate action.”

He also touted North Dakota’s low workers’ comp rates.

“From my perspective, what we are doing is absolutely fair,” said Keiser.

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