Legal News

Illegal Aliens? Eligibility for Workers? Comp Benefits Still Under Debate

By Brian Harris

In my last post, I discussed the issue of whether illegal aliens are eligible for unemployment benefits as a general rule. A related yet equally significant issue pertains to whether illegal aliens are similarly eligible for workers? compensation benefits. At present, there is no cut and dry answer to this question. On one side of the argument are those who say that illegal aliens are not ?lawful? employees because they should not have been able to secure employment in the first place and are therefore ineligible to receive workers? compensation benefits. On the other side of the argument are those individuals who say that illegal aliens, despite the fact that they do not have a valid visa that allows them to lawfully work in the United States, are still entitled to workers? compensation benefits because disallowing workers? compensation benefits to illegal aliens would provide incentives to employers to continue to hire illegal aliens and thereby avoid future liability.

Across the country, the law on this issue varies. However, there appears to be a trend among several states toward affording illegal aliens workers? compensation benefits even though these individuals technically do not have a valid visa that allows them to work legally in the United States. In Pennsylvania for instance, the Commonwealth Court applied the Immigration Reform & Control Act of 1986 to the Pennsylvania Workers? Compensation Act. In Reinforced Earth Co. v. WCAB, the court held that an illegal alien was not precluded from receiving workers? compensation benefits solely because of his or her immigration status. The court further concluded that public policy would not be served by denying benefits to an illegal alien merely because of his or her immigration status. Moreover, the court held that allowing employers to deny workers? compensation benefits to illegal aliens would provide employers with more incentive to hire illegal aliens in the future.

Similarly, in the state of New York, under Section 17 of their workers? compensation statute, aliens are to be considered in the same light as lawful residents of the United States and should therefore be awarded workers? compensation benefits when necessary. The awarding of workers? compensation benefits to aliens should be consistent with the New York workers? compensation statute awarding such benefits regardless of any question of wrongdoing of any kind. (Testa v. Sorrento Restaurant Inc.)

In the state of Virginia, however, the Supreme Court of Virginia reached a contrary result. In the case of Jose Granados v. Windson Development Corp., the court affirmed the decision of the Workers? Compensation Commission denying benefits to claimant Jose Ismael Granados because of his illegal immigration status. Because the claimant at his hearing admitted that he had submitted false documents to his employer in order to secure employment, the Workers? Compensation Commission denied his claim. The Supreme Court of Virginia affirmed this decision. Needless to say, this decision by the Supreme Court stirred significant public debate on the issue, leading the local Virginia Legislature to amend certain sections of its workers? compensation statute in order to avoid this type of result in the future.

Should illegal aliens be denied workers? compensation benefits solely because of their immigration status? Should employers be given an incentive to continue hiring illegal aliens by denying these individuals workers? compensation benefits? It appears that some states are now moving toward awarding such benefits to illegal aliens even though they are not lawfully authorized to work in the United States. It seems that denying workers? compensation benefits to illegal aliens would appear to be contrary to public policy. Stay tuned for more developments on this issue.

Rob C. Tonogbanua, Esq.
Dickie McCamey & Chilcote, P.C.
www.dmclaw.com

Full post as published by The Legal Intelligencer Blog on November 24, 2009 (boomark / email).