Undocumented, and Unprotected? IL Allows Coverage to ‘Aliens,’ Based on Previous Ruling

10.18.2017


By Phil Yacuboski

This is the next 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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Chicago, IL (Workerscompensation.com) – Undocumented workers in Illinois can experience full benefits under state law. It stems from a 2008 case involving an illegal immigrant from Mexico who was injured on the job while deboning chickens. The court ruled that “aliens” are allowed to receive workers’ compensation benefits in Illinois.

“While it’s illegal to employ illegal immigrants, if you do it, then those workers are provided the same protections as U.S. citizens,” said Robert Finley, a workers’ compensation attorney with Hinshaw and Culbertson in Chicago. “The view of the court is that the law is in place to protect injured workers and to protect their financial stability, even if they are illegal.”

Finley said there are penalties for employed illegal immigrants, but the state will not punish the worker once they are hurt on the job. 

In numbers collected by Pew Research, Illinois is estimated to have about 450,000 undocumented immigrants. The Chicago Tribune estimates that number is down about 10 percent from numbers analyzed in 2010. The paper speculates shifting available work and tougher immigration laws are the main reasons.

In some states, once it’s discovered that an undocumented worker has false paperwork or a stolen Social Security number, they could be prosecuted for fraud or even deported. Finely said he was unaware of that happening in Illinois.

“Being deported might become a practical reality in the resolution of the claim,” he said, “that the individual leaves the country either voluntarily or involuntarily because the employer might have an obligation to report it. It’s not something that’s mandated under the Workers’ Compensation Act.”

He does, however, think that from a legal perspective, if that were to happen to an employer, there could be a plausible defense argument.

“If the employment relationship is premised in fraud, then the employer could utilize that as a defense because employment is a contract in nature and if you contract in fraud, then it could potentially be voidable,” Finley said. “From an employer’s perspective, you would want to advance that type of defense.”

He said both the employee and the employer could be subject to the fraud provisions under the workers’ compensation law, which indicates anyone (employer, employee or insurer) that claims benefits fraudulently is subject to different types of penalties.

“That might discourage those types of people from doing that,” Finley said.

Those who advocate for the immigrant community argue the Illinois law is sound.

“The difficult part for any worker is that workers’ comp doesn’t really protect any worker from retaliation in the workplace,” said Tim Bell, executive director of the Chicago Workers Collaborative.

He too, was unaware of undocumented workers being deported once filing a claim.

“It would create an incentive to hire unauthorized workers if they felt workers’ comp would not pursue the claim out of fear of being deported,” he said. “That’s retaliation for immigration reasons.”

Finley said he felt the law was working from a worker’s perspective, but said it’s likely something the insurance industry was not happy to support.

“I would imagine they would want to lobby for a change,” Finley said. “However the scrutiny for those claims is not any different from those that here legally and those that are not here legally.”

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