Immigration reform is one of the hottest topics around the country. Amid concerns from employers, unions, and the employees themselves, many proposals are being floated that could potentially strip rights and benefits away from the 25.7 million foreign-born laborers the Department of Labor estimates are working within the United States. This figure represents roughly 16.5% of the total labor force and many of these laborers work in service and manufacturing sectors of the economy. As such, they are exposed to a greater degree of occupational risk than the rest of the workforce.

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Fohrman Immigrants are Entitled to Workers' Compensation Benefits

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Under Illinois law, the Workers’ Compensation Act provides equal coverage for a worker regardless of their immigration status. This means immigrants and their Chicago workers’ compensation attorney are entitled to seek compensation for medical care, total disability, and permanent benefits if they are injured on the job while working for a US employer. The only exception to this is in regard to death benefits which cannot be paid to a workers beneficiaries who are not living in the United States, Canada, or Mexico.

This has been challenged in court by employers seeking to avoid paying claims to injured immigrant workers. They have used the federal Immigration Reform and Control Act of 1986 which prohibits employers from hiring aliens who could not provide proof of their legal immigration status in an effort to avoid paying for everything from back injuries to exposure to toxic chemicals.

However, Illinois courts affirmed in Economy Packing Co v. Illinois Workers’ Compensation Commission that alien laborers can receive benefits regardless of their immigration status. This is true whether the immigrant has used false documentation in order to obtain such employment, or if their employer has failed to perform due diligence in investigating such documentation. As the law has been interpreted, these factors are irrelevant in determining whether an employee is legally entitled to receive workers’ compensation benefits.

Concerns of Retaliation are Being Raised

Even though the law states that undocumented immigrants are entitled to workers’ compensation, employers are using immigration law to avoid paying claims. In California, the National Employment Law Project and American Civil Liberties Union are investigating stories of undocumented immigrants who have filed claims against employers only to find their employment terminated prior to a knock on their door from Immigration & Customs Enforcement.

This has resulted in some interesting situations where employees are entitled to workers’ compensation benefits, yet being deported or voluntarily returning home as their cases are being processed. One such case occurred in Nebraska last year involved Odilon Visoso and the injuries he suffered while working as a meat processor at Cargill. Visoso suffered serious injury when a beef carcass hit him in the head. These injuries required neck surgery, physical therapy, chiropractic care, and pain medication to resolve. The state workers’ compensation commission determined that the accident cost him roughly 45% of his earning capacity.

Mr. Visoso voluntarily returned to Mexico as his attorney’s appealed his claim. Upon appeal, it was determined that he had suffered 100% loss of earning capacity. However, determining the value of this was complicated by the fact that no wage data existed in the Mexican community where he lived. As a result, he currently receives wage compensation based upon the wage data from the Scuyler, Nebraska community where he was injured.

Immigrant Labor Rights to Remember

Immigrants are entitled to the same workers’ compensation benefits and rights as are natural born citizens. This means that they are entitled to the following regardless of whether they have entered the country illegally or have an immigration change status that is pending:

  • May file workers compensation claims if they can show they have worked 40 hours per week for at least 13 weeks in the course of a year.
  • Must be paid a minimum wage of $8.25 per hour worked. However, for the first 90 days they may be paid at a rate of $7.75 per hour.
  • Must be paid overtime at a rate of 1.5 times per hour for every hour over 40 they work in the course of a week.
  • Must be provided adequate training and safety equipment for the performance of their duties.
  • Cannot be retaliated against for filing workers’ compensation claims resulting from the performance of their job.
  • May receive compensation for medical care and disability following an accident.
  • May receive reimbursement for lost wages.
  • May receive vocational retraining if requested.

Looking to the Future

There are a number of proposals being floated by politicians in Illinois and around the country that would limit the rights of undocumented immigrants to seek workers’ compensation. However, it is unlikely that these proposals will become law. As such, it is important for employers to note that an employee’s immigration status will have no bearing on their right and ability to file workers’ compensation claims.

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