Undocumented, and Unprotected? In NY, Full Workers’ Comp Benefits Are Available to Illegal Immigrant

10.04.2017


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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New York, NY (Workerscompensation.com) – Those who come to the United States illegally and remain here as undocumented could see full workers’ compensation benefits if hurt on the job, under New York state law.

According to Pew Research, New York is one of six states that account for 59% of all illegal immigrants in the United States, with the latest population numbers at 775,000.

“I have no reason to ask my clients if they are undocumented or not, but it becomes clear in the course of speaking with them that a very large number of my clients are, in fact, undocumented,” said David Klein, a workers’ compensation attorney in New York City. 

He said while undocumented workers are entitled to the same benefits as everyone else, there is a small class of permanent injuries where some workers are denied.

“That doesn’t come up terribly often,” Klein said, adding that in rare situations when a worker has permanently lost the use of more than 50% of a “major member,” they can petition the workers’ compensation board for “ongoing payments” in lieu of a lump sum. “Undocumented workers are excluded, so the loss of a major member can result in a substantial benefit, but potentially less than if he were documented.” 

As has happened in other states such as Florida, once those filing are identified as illegal, they are sometimes quickly deported.

Klein said many of his clients do live in fear of deportation.

“But how many injured workers who are not filing claims out of fear is hard to say,” he said. “My guess would be that there are far too many injured workers afraid to file workers' comp and personal injury cases.”

Immigrants rights’ groups argue it’s good policy.

“It’s an important protection for workers in the same way that every worker regardless of their status has the right to be paid the minimum wage,” said Nadia Morin-Molina, associate director, New York Committee for Occupational Safety and Health. “We wouldn’t want to create a society where there are classes of workers meaning some who have rights and others who have none.”

She said denying workers’ comp claims to illegal immigrants hurts everyone.

“If an employer doesn’t have to pay them workers’ comp, then they see that as a worker they can exploit,” she said. “That’s bad for the worker and everyone else because it brings everyone’s standards down.”

Morin-Molina said she has not heard of any cases in New York where an undocumented worker is deported once they file a workers’ comp claim.

“That would be disturbing if it did,” she said.

Insurance brokers, however, see the issue differently.

“On construction sites and other work sites, while you do get Social Security numbers, they can be fake,” said Pat Ostrowski, senior vice president of Integro, an insurance brokerage and employee benefits consulting firm in New York. “It happens.”

She said in New York workers’ comp cases, the Social Security number isn’t taken into consideration.

“I do think there’s a fault in the system,” she said. “But I think what the board figures is: Someone is hurt or they are not.”

Ostrowski said workers’ comp benefits are also sent to the home country of a worker, should they leave the United States.

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