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.

These are the employment rights undocumented immigrants have

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:

1.  Seek legal advice from a specialized attorney. As an undocumented worker, it’s important to be guided by an attorney specialized in workers’ comp cases to help you correctly file a claim. An experienced lawyer can provide you with accurate information about the laws and regulations that protect you, eliminating any fear and questions you may have.  
2.   Gather evidence. If you gather enough evidence that shows you were injured or got sick on the job, you may have a greater chance of success in getting your claim approved. Proof that can back up your case includes medical reports, photos of the accident scene and your injuries, testimonials, and contact information of witnesses.
3.   Be completely honest in your claim. When you’re filing your claim, try to be as accurate and honest as possible. Any false or misleading information you provide can damage your case and credibility.
4.   Do not sign anything without having an attorney present. Whether you’re signing to accept an offer, or putting your John Hancock on wavering your legal rights, always have an attorney by your side. They can explain to you what exactly you are signing and if you should do so or not.
5.   Don’t ever give up. Filing a workers’ compensation claim can be a long and challenging process. But if you feel like it’s going nowhere or your claim has been rejected for some reason, please don’t give up. If necessary, discuss your options with an attorney to see how your process can be sped up and be successful.

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.