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.
Trenton, NJ (WorkersCompensation.com) – The difference in workers’ comp benefits between a United States citizen and an undocumented worker in New Jersey is – well, there’s not much of a difference.
“In New Jersey, it’s very liberal,” said John Rodriguez, a Scotch Plains, NJ workers’ comp attorney. “In fact, there’s no difference between a documented worker and an undocumented worker. They have the same access to benefits as anyone else.”
Rodriguez, who said 30 percent of his workers’ comp cases involve undocumented workers, and added he knew of only a small number of workers being fired for being in the country illegally once filing a claim.
“Sometimes they are working with phony Social Security numbers,” he said, “and they are being paid cash or by personal check. They are not part of the legal process and then they would have to go on the books. That’s the only time they would be terminated.”
As far as fraud is concerned, where there might be a fear of a stolen Social Security number, Rodriquez said he is upfront with his prospective clients.
“I specifically ask when I’m interviewing them in the beginning whether or not it’s a good number,” he said. “I will not file under a bad number.”
He said New Jersey has a provision in the law where you could leave the Social Security portion blank and the state will issue a number just for purposes of the workers’ compensation litigation.
“That lets everyone know that this person is undocumented,” Rodriguez said. “They don’t have a Social Security number.”
That change, he said, is a change from the past where the phony number was used, which caused “a lot of problems,” he said. In many cases, those numbers were stolen and involve child support payments. The number the undocumented worker “steals” actually belongs to someone who owes support.
“He’s in a really bad spot,” he said. “He’s either got (to) admit that he committed fraud or he’s got to pay child support.”
Rodriguez said he’s seen many cases where undocumented workers will often pay a child support lien, rather than get caught.
Jersey City, NJ, which has a large immigrant population working in the construction trades, also sees its fair share of workers’ comp claims.
“I have a lot of undocumented workers who have filed workers’ comp claims,” said Ricky Bagolie, a workers’ comp attorney in Jersey City.
But while there are those that get fired for being in the country illegally, it’s rare.
“It happens,” Bagolie said. “The bosses typically don’t fire the undocumented worker because there’s no specific consequences in the workers’ comp court because they are covered by law.”
While the state was mum on specifics, the federal government has cracked down on employers hiring illegal immigrants.
In May of 2017, Bill Li, 50, the owner of a dry cleaning business in Williamstown, was sentenced to 12 months in prison for hiring illegal immigrants and failing to pay taxes on them while they worked.
New Jersey has more than 30,000 immigration cases tied up in the court system, according to TRAC, the Transactional Records Access Clearinghouse at Syracuse University.
There has been increasing immigration enforcement in New Jersey in the past several years, according to Nicole Miller, legal services director for the American Friends Service Committee in Newark. There’s also been a backlog of cases.
“It’s very hard to find pro-bono attorneys at firms who are able to take on a case when you tell them it’s going to take years before there’s a final hearing. It’s a real problem on many different levels,” she told NJ 105.5. “It’s only going to get worse because we’ve seen, as you know, increased arrests across the country and in New Jersey.”
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