Wyoming's Supreme Court* will be considering the issue of whether an illegal immigrant who is injured on the job should be entitled to workers comp benefits. In the particular case at hand, one Javier Molina lost a leg after being run over by a piece of construction equipment while at work for Freund Construction. He was denied compensability and turned to the courts for relief.
Compensability for immigrant workers is getting to be a hot issue lately. We recently wrote about a move by legislators in South Carolina to bar benefits for injured immigrant workers.
Providing that the injury meets compensability criteria, what is the thinking in denying benefits to immigrant workers for injuries that occur at work? Didn't the employer enjoy the fruits of that workers' labor? In the Wyoming* case, Molina had been working for Freund for 10 years. More importantly, if an employer doesn't have any financial responsibility for work injuries for one class of workers, wouldn't that provide an incentive for unscrupulous employers to hire that class of worker for the riskiest jobs? That was the thinking of the Maryland Court of Appeals in a recent ruling that upheld benefits for undocumented workers who are injured at work. In commenting on the ruling, attorney Luiz R.S. Simmons who advocated for the injured worker, stated:
"One of the collateral consequences of the ruling is that it will help to discourage unscrupulous employers from hiring undocumented workers and putting them in risky situations. If you are requiring everyone to be covered, you are taking away the incentive to look for and recruit undocumented workers," Simmons said. "If you have tens of thousands of undocumented workers you try to create an environment where employers are discouraged not encouraged to hire them."
Simmons said if undocumented workers would not receive workers' compensation they would be sought out by employers because it is cheaper to hire them.
If a workers' immigration status is legally questionable, that’s a separate issue that can be dealt with by the appropriate authorities. Employers and policymakers who disagree should be careful what they wish for. Workers comp affords two way protection: workers who are injured on the job get medical and wage replacement benefits while they recover, and employers get protection from being sued through “exclusive remedy” provisions of the law.
* Editorial note: The original blog post mistakenly cited "Nebraska" rather than Wyoming in the blog headline & text. I apologize to Nebraska for the error!