S. Carolina to bar workers comp for undocumented immigrants?

May 25th, 2005 by Julie Ferguson

Apparently, at least a few legislators in South Carolina think that illegal immigrants should be barred from receiving workers comp benefits, and there is a bill to that effect under consideration in the statehouse:
“Thousands of undocumented workers in the Palmetto State could be denied workers’ compensation coverage, including lost wages and medical bills stemming from work-related injuries, under a proposed bill in the Statehouse.
The bill was introduced earlier this year by two Upstate lawmakers and stalled in committee.
Supporters say illegal immigrants often commit fraud, such as fake Social Security and green cards, to obtain jobs and that should make them ineligible to collect benefits.”

Now it may be sexy for lawmakers to jump on the “illegal immigrant” issue right now, but this is wrong-headed thinking that shows a fundamental lack of understanding about workers comp. For one thing, this proposal is bad for the employer. When workers are afforded the protection of workers comp, in all but extraordinary circumstances, they are then barred from suing their employer. Workers comp becomes the exclusive remedy for any on-the-job injuries. If you remove that protection from the worker, you are also removing the protection from the employer. If injured, these workers would be free to sue the employer (and under such circumstances, we would encourage them to do so!). Of course, we know that many undocumented workers would not have the resources or wherewithal to do this.
Secondly, not only would this measure do nothing to discourage undocumented immigrant workers, it would actually incent unscrupulous employers to increase the ranks of illegal immigrants. If an employer could hire undocumented workers, pay them less, assign them the most dangerous jobs, and then be absolved from any responsibility for a failure to protect them, it’s highly unlikely that the ranks of illegal immigrant workers would diminish – slavery affords a good competitive edge! Relieving an employer of any financial accountability for work injuries that occur on their premises is a distinctly bad idea. If an employer is willing to accept the benefits of an undocumented worker’s labor, why shouldn’t the employer also bear the associated responsibilities?
Scapegoating a vulnerable population won’t solve the problem
It’s popular today to demonize “illegal immigrants” and to lay a lot of the blame for our national woes at their doorstep. Even the very term is loaded – we don’t call the many employers that knowingly hire undocumented workers “illegal employers.” Let’s face it, whether they got here legally or snuck in under the wire, most immigrants are desperate to grab a piece of the American dream, just as your grandparents and mine were. Most are simply trying to eke out a living for their families, and taking great risks to do so. If the flood of immigrants is a problem that needs solving, this does nothing to solve it; such a measure would merely open the door to further abuse for an already exploited population.
There is little doubt that for Mexican and other Hispanic workers, exploitation is a fact of life today. Last year, a study by the Associated Press (AP) documented the plight of Mexican immigrant workers as a “worsening epidemic that is now claiming a victim a day.” Mexican workers are about 80 percent more likely to die from a work injury than native-born workers, and more than twice as likely to die on the job as other immigrant workers. And South Carolina legislators take note: death rates are greatest in several Southern and Western states, where a Mexican worker is four times more likely to die than the average U.S.-born worker.
Most states provide coverage for undocumented workers
If excluding undocumented immigrants from coverage was a good idea, it is likely that more states might have jumped on the bandwagon by now, yet according to the National Employment Law Project, most states do afford coverage (pdf):
“The majority of the states’ workers’ compensation laws include aliens in the definition of covered employees. Entitlement to lost wages under state workers’ compensation laws turns on state statutes and their definition of worker or employee. State courts in California, Colorado, Connecticut, Florida, Georgia, Iowa, Louisiana, Nevada, New Jersey, New York, Pennsylvania, and Texas have specifically held that undocumented workers are covered under their state workers’ compensation laws.”
” … like Virginia, a number of other states also explicitly provide for workers’ compensation benefits for “lawfully or unlawfully employed” employees. They are: Arizona, California, Colorado, Florida, Montana, North Carolina, South Carolina, and Utah. There is only one state, Wyoming, which has a statute specifically limiting coverage to documented aliens.”

With any luck, this measure will simply get quietly tucked away in the “what were they thinking?” file. We hope that this legislation is little more than political grandstanding and wiser heads will prevail.
Here are some additional past posts related to this topic:
Hispanic Fatalities on the job: the Tip of the Iceberg
Modern day slavery
Compensation for an Mexican immigrant worker who dies on the job is roughly half what a Canadian immigrant would get.