Whenever an employee suffers a work-related injury or illness, they can file a workers’ compensation claim. However, for undocumented immigrants, filing a workers’ comp claim can become an overwhelming process due to their fears of having any possible legal repercussions or having their immigration status exposed.
Nevertheless, we remind everyone that labor laws and regulations protect all workers, regardless of their immigration status. In this blog article, we want to explain the labor rights of undocumented immigrants here in the U.S. and the laws and regulations that protect them in workers’ compensation cases.
Let’s start off with the fact that undocumented immigrants are entitled to the same workers’ rights as U.S. citizens and legal residents. This includes the right to a fair wage, safe working conditions, and protection against workplace harassment and discrimination. That being said, undocumented immigrants also have the right to file a workers’ compensation claim if they suffer work-related injuries or illnesses.
Despite any fear or hesitance undocumented immigrants may have in filing a claim, they should seek legal advice from a workers’ comp attorney. Why? A lawyer can provide legal advice on what steps to take and how they can file a workers’ comp claim without having any further problems down the road.
What are the Laws and Regulations that protect undocumented workers?
There are several laws and regulations at the federal and state levels that protect undocumented workers in workers’ compensation cases. At the federal level, there is the Fair Labor Standards Act (FLSA). Under the FLSA, all employees are covered with workers’ rights regardless of their legal status.
For example, in 2011, a federal court ruled that the FLSA applies to anyone hired by an employer, based on the FLSA’s definition of “employer.” What this ruling means is the FLSA’s interpretation contains no exceptions or exclusions for those workers who don’t have legal status.
On the other hand, on a federal level, the Occupational Safety and Health Act (OSHA) requires employers to provide a safe work environment for all employees, regardless of their immigration status. Not meeting these requirements may have serious consequences for employers.
At a state level, there are certain regulations that protect undocumented workers in workers’ compensation cases. For example, some states have laws that prohibit employment discrimination based on immigration status and ensure they have access to workers’ compensation. There are also state workers’ compensation programs that offer protection to undocumented workers, even if they are not covered by federal workers’ compensation.
In the state of Georgia, undocumented workers may receive temporary total disability (TTD) benefits if they are not authorized to go back to work by an authorized physician or if their employer cannot place them on light-duty work restrictions. Undocumented workers may also receive temporary partial disability (TPD) benefits if they can return to their previous job and earn a lower wage, but this usually depends on the employer’s capabilities to provide them with other “lighter” tasks.
In summary, undocumented workers have a right to file a workers’ comp claim, regardless of their legal status, and cannot be fired by doing so.
Here are some tips undocumented workers should follow while filing a workers’ compensation claim
At Castan & Lecca, we have more than 20 years of experience in labor and immigration law, so we are more than qualified to assist you in your workers’ compensation process. We remind all undocumented immigrants that they have the same worker rights as U.S. citizens.
However, we know you might feel afraid of any legal repercussions and might not be completely aware of how this process works. That is why we’re going to provide you with some tips to file a workers’ comp claim as an undocumented worker:
If you are considering filing a workers’ compensation claim and need legal assistance, contact us at Castan & Lecca to schedule a free consultation. Our experience in workers’ compensation cases, as well as our willingness to help out our clients, can provide you with the peace of mind that we’re taking the right steps to file your claim and get your benefits.
51 Lenox Pointe NE
Atlanta, GA 30324
4131 Steve Reynolds Blvd #102
Norcross, GA 30093
Dustin Thompson
Attorney
Dustin Thompson was raised in rural Camilla, Georgia. Dustin graduated from Georgia Southern University majoring in political science and history. After graduation, Dustin obtained a law degree from Georgia State University College of Law in Atlanta. Before becoming a lawyer, Dustin worked a variety of jobs from a watermelon farm in Mitchell County to a policy think tank in Washington D.C. Dustin has practiced law almost exclusively in the workers’ compensation arena since 2014. For nearly a decade, he worked for a large defense firm in Georgia representing employers and insurers and gaining the invaluable experience and knowledge of how insurers defend claims. In 2023, Dustin joined the firm to use his expertise and litigation skills to help individuals who have been injured as a result of work accidents and third-party negligence. Dustin has been repeatedly recognized by Best Lawyers: “Ones to Watch” in the practice of workers’ compensation. Outside of work, Dustin enjoys traveling, hunting, and attending sporting events. He and his family are active in Buckhead Church.
MICHAEL BOESCHEN
Attorney
Michael Boeschen (Mike) was born in Wichita, KS and raised in Chattanooga, TN. Mike graduated from The McCallie School and went on to study history, Spanish, and Latin American Studies at Southern Methodist University in Dallas, TX. After graduation, he went on to pursue a law degree from the University Of Georgia School Of Law. During law school, Mike participated in the Legal Aid Clinic, assisting in the defense of indigent criminal defendants. Mike has been licensed to practice law in Georgia since 2002 and his main practice area consists of representing injured workers as they navigate through the Georgia workers’ compensation system. Mike is also fluent in Spanish. In his spare time Mike enjoys following soccer, cooking, and spending time with his wife and two young daughters. Mike and his family are parishioners of the Holy Spirit Catholic Church in Sandy Springs, GA
CHRISTIAN PECONE
Attorney
ED DENKER
Attorney
ILIANA DOBREV
Attorney
KEN THAXTON
Attorney
ALEXANDER LECCA
Attorney
DANIEL CASTAN
Attorney
Dan Castan is a senior partner at Castan and Lecca, PC in Buckhead and represents injured workers before the State Board of Workers’ Compensation and plaintiffs in State and Superior Courts of Georgia for injuries suffered in accidents. Dan litigated one of the seminal claims securing the rights of undocumented workers to receive Workers’ Compensation benefits in the state of Georgia when injured in the case of Wet Walls, Inc. vs. Ledesma. Dan has successfully fought and settled multi million dollar cases. He was born and raised in Newark, New Jersey to immigrant parents from Cuba. He received a Bachelor of Arts degree from Boston College and received his Juris Doctor from The Washington College of Law at The American University in Washington D.C. Dan was admitted to the Georgia Bar in November, 1993. He is an active member of the Hispanic Chamber of Commerce, Georgia Trial Lawyers Association, Atlanta Bar Association and the Workers’ Compensation Section of the State Bar of Georgia. Dan is a founding member and Director of the Latino Victory Fund Georgia and serves on the Board of The Latin American Association. Dan has been dedicated to getting Latinos elected to local, state and Federal offices in Georgia. He has been a Big Brother through Big Brothers and Sisters of Metro Atlanta and a mentor through The Latin American Association’s mentor/mentee program. Dan is married with two children.
