Injured at Work? Your Rights as an Undocumented Worker – FAQ Guide
If you are an undocumented worker who has been injured on the job, it’s critical to understand your rights and legal options. Your status as an undocumented worker does not prevent you from being protected by the same federal and state labor laws as American citizens. Immigrant workers in the United States make up more than 18 percent of the country’s total workforce, and over 7 million of them are undocumented. It’s normal to feel afraid after being injured at work, especially as an undocumented immigrant. After experiencing a workplace injury, there are several immediate steps you can take to protect yourself and your rights. Understanding your rights and options for seeking reimbursement from your employer is the best way to prepare for any unexpected injury.
7 million
Undocumented workers
18 Percent
of the U.S. workforce
Immediate Questions After a Workplace Injury for Undocumented Workers
What Should an Undocumented Worker Do Immediately After a Workplace Injury?
The first step after being injured at work is to seek medical assistance from emergency medical services providers or your regular physician. Then, report the injury to your employer, and if it was severe, report it to the Occupational Health and Safety Administration (OSHA). Document everything, including medical records, communications with your employer, photos of the injury, and photos of the job site, especially if you were injured on a construction site, where the injury occurred.
After receiving medical assistance, seek legal advice from an experienced attorney to determine your options for recovering compensation for your injuries.
Can an Undocumented Worker Get Medical Treatment After a Job Injury?
Can Undocumented Workers Receive Workers’ Compensation Benefits?
Most states in the U.S. allow undocumented workers to receive workers’ compensation benefits after being injured at work. In fact, there are explicit laws in 36 states that include undocumented workers in the definition of “employee” in state workers’ compensation laws. The only state that explicitly excludes undocumented workers from receiving these benefits is Wyoming.
Workers’ compensation benefits typically provide reimbursement for medical bills, disability expenses, and sometimes lost wages. Your immigration status does not automatically disqualify your workers’ compensation claim.
States that do not:
- Wyoming
States that do:
- Alaska
- Arizona
- Arkansas
- California
- Colorado
- Connecticut
- Delaware
- Florida
- Georgia
- Hawaii
- Idaho
- Illinois
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Mainea
- Maryland
- Massachusetts
- Minnesota
- Missouri
- Montana
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- Oklahoma
- Oregona
- Pennsylvania
- South Carolina
- Texas
- Virginia
Can an Undocumented Worker Be Fired or Deported for Reporting an Injury?
In most cases, retaliation against workers who report workplace injuries is illegal. Under the federal Occupational Safety and Health Act, workers have the right to report an injury without fear of retaliation or discrimination by their employer, even if they are undocumented. Additionally, most state workers’ compensation laws prohibit retaliation or discrimination against employees who file claims for workers’ compensation benefits. These laws make it illegal to fire, threaten, or intentionally obstruct an employee seeking benefits.
Unfortunately, some employers still retaliate against workers for filing claims for benefits, even though it is illegal, and undocumented workers are often targets. It’s important to know that immigration enforcement is not automatically triggered when you report an injury, and retaliation of any kind is illegal and should be documented.
What if My Employer Says Undocumented Workers Have No Legal Rights?
If your employer tells you that undocumented workers have no legal rights, they are wrong. Under U.S. law, all workers receive the same guaranteed wage, safety, and injury protections, regardless of immigration status.
Basic Workplace Rights for Undocumented Workers
Even if you have not experienced an injury at work, it’s important to understand all your rights as an undocumented worker so you are fully prepared if an injury or labor law violation occurs in the future.
Are Undocumented Workers Protected by Minimum Wage and Overtime Laws?
All workers, regardless of immigration status, must receive minimum wage and overtime pay when applicable. Undocumented workers have the same wage and hour rights as other workers, including the right to breaks, tips, and more.
Do Undocumented Workers Have the Right to a Safe Workplace?
Workers are protected by Occupational Health and Safety Act, among other laws, and have the right to report unsafe working conditions without fear.
Can Undocumented Immigrants Organize or Join a Union?
Regardless of immigration status, workers across the U.S. have the right to organize with other workers or join unions. Retaliation against workers for organizing is illegal. As an immigrant worker, you have the right to talk about your pay and unfair treatment in your workplace, vote in a union, join a union, and go on strike.
What Should Undocumented Workers Know About Discrimination Based on Language or National Origin?
Federal employment discrimination laws protect all employees from discrimination, even if they are undocumented. Discrimination based on language, accent, or national origin is illegal and should be reported.
Do Undocumented Workers Qualify for Paid Sick Leave or Safe Leave?
Depending on your city and state, local laws may guarantee paid sick or safe leave for all workers. However, eligibility depends on where you live and work, as each state has different laws regarding paid leave.
Do Undocumented Independent Contractors Have Any Workplace Rights?
Some legal protections still apply to independent contractors, such as the right to safe working conditions and timely payment. Knowing whether you are classified as an employee or a contractor is important since misclassification can lead to legal challenges.
Reporting Violations and Legal Risks for Injured Undocumented Workers
Even though retaliation by employers is illegal, there are still real risks in filing workers’ compensation claims or reporting labor law violations as an undocumented immigrant. Unfortunately, even if an employer illegally reports undocumented workers to Immigration and Customs Enforcement (ICE) for filing a workers’ compensation claim, ICE is still permitted to follow up on the report and detain or deport the worker. It’s crucial to seek legal advice from an employment and immigration lawyer to evaluate the risks of filing a complaint or workers’ compensation claim.
If you believe your employer violated your rights after you filed a claim for workers’ compensation benefits, you can contact the National Labor Relations Board (NLRB) to file a report and learn what steps to take to protect yourself. Because immigration status is not relevant to whether your employer violated the law, the NLRB will not ask you about your immigration status or share any information you give with ICE or the Department of Homeland Security.
Can Undocumented Workers Report Labor Violations Without Risking Immigration Enforcement?
Despite their important contributions to the U.S. economy, immigrant workers sometimes experience discrimination and retaliation on the job if they speak out about labor violations. Though longstanding federal immigration policy states that immigration agents should not interfere in labor disputes, the current federal administration is rapidly changing, and removing policies like this that were put in place to protect immigrant workers. While it is important to report labor violations, it is also important to evaluate the risks so you can make an informed decision.
What Can Undocumented Workers Do if Their Employer Threatens To Call Immigration?
It is illegal for employers to threaten to call ICE or other immigration enforcement agents in retaliation against an undocumented worker. If your employer does retaliate in this way, there may be legal remedies available to you—speak to an immigration attorney as soon as possible to evaluate the risks of the situation and learn how to protect yourself moving forward.
What Rights Do Undocumented Workers Have During an ICE Raid or Workplace Immigration Enforcement Action?
If ICE raids your workplace or your employer takes other action with immigration enforcement, it is important to know your rights. You have the right to remain silent and do not have to discuss your immigration or citizenship status with any police, ICE, or other officials. Anything you tell an officer can be used against you later in immigration court. However, if you are not a citizen and an immigration agent requests to see your papers, you must show them to the agent if you have them with you.
If an ICE agent requests to search you or your belongings, you have the right to say no. Agents do not have the right to search you without consent or probable cause. If you are over age 18, it is crucial to keep your papers with you at all times in case of an unexpected raid.
Are There Risks for Undocumented Workers Filing Injury Claims With False Documents?
Using false documents as an undocumented worker can complicate any legal claims you may file. Never discuss your immigration status at work or carry false documents with you, and contact an attorney if you have concerns about past paperwork.
Are There Limits to the Compensation Undocumented Workers Can Receive After a Workplace Injury?
In 2002, the United States Supreme Court ruled in Hoffman Plastic Compounds, Inc. v. NLRB that undocumented workers who are illegally fired for engaging in union organizing activities are not entitled to receive back pay wages. While some remedies for workers, like back pay or reinstatement, may be limited, many rights to medical care and other injury compensation remain.
Protecting Yourself After a Workplace Injury as an Undocumented Worker
As an undocumented worker in the United States, it is crucial to take the necessary steps to protect yourself, your family, and your job.
How Can Undocumented Workers Protect Themselves After a Workplace Injury?
To best protect yourself before and after experiencing workplace injuries, stay informed about your employer’s policies and any history of retaliation for workers’ compensation claims. Document everything about the process of receiving medical attention and filing for benefits. Finally, seek trusted legal support to ensure your rights are protected for the long run.
Where Can Undocumented Workers Find Help After a Job Injury?
There are many nationally recognized resources for undocumented workers who experience injuries or labor law violations at work. Some of the organizations and boards that may provide the most help include:
- National Day Laborer Organizing Network: NDLON works to improve the lives of day laborers, migrants, and low-wage workers by building leadership among those facing injustice so they can challenge inequality and expand workers’ rights.
- Occupational Safety and Health Administration: OSHA’s mission is to ensure America’s workers have safe and healthy working conditions free from unlawful retaliation.
- National Labor Relations Board: The NLRB is an independent federal agency that protects employees’ rights to join together to improve their wages and working conditions under the National Labor Relations Act, regardless of immigration status.
Conclusion
If you are an undocumented worker in the U.S. you have rights. In fact, you have the same right to workers’ compensation benefits and a safe workplace as every other worker in the country. If your employer makes any threats against you for seeking workers’ compensation after an injury, it’s important to speak with an attorney as soon as possible to protect your future.
At Lever & Ecker, our award-winning New York lawyers have more than 70 years of combined experience serving injured workers across the state. With offices in White Plains, the Bronx, and Queens, we help injured clients throughout New York State, including all five boroughs of New York City, all of Westchester County, and the surrounding counties. We make home and hospital visits, so if you can’t come to us, we’ll come to you. Contact us today to learn more about your rights and legal options as an injured worker.
