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Are Undocumented Workers Entitled to Worker's Compensation?

Under the Immigration Reform and Control Act (IRA), it is illegal for any employer to knowingly hire an undocumented immigrant.

If an undocumented worker presents forged I-9 documents to secure employment, can the employer or insurance company then refuse to pay worker's compensation benefits to that worker? Can they discriminate against the worker or violate federal protections for employees?

If you are an undocumented worker, even if you obtained your job by presenting forged documents, your employer is subject to South Carolina's worker's compensation laws and federal protections under the Fair Labor Standards Act (FLSA).

If you were injured on the job, denied overtime pay, or paid less than minimum wage for your work, you have the right and responsibility to sue your employer and hold them accountable.

Illegal Aliens and Worker's Compensation Nationwide

Some states, including Arizona and Wyoming, have decided that illegal immigrants cannot legally enter into an employment contract in the United States, therefore they are not employees and do not qualify for worker's compensation.

Other states have found that, once an illegal immigrant is hired, they are entitled to the same protections as other workers including:

  • South Carolina
  • Texas
  • New York
  • Florida
  • Utah
  • Connecticut
  • Nebraska
  • Georgia
  • Louisiana
  • Ohio
  • Oklahoma
  • North Carolina
  • New Jersey

Undocumented Workers in SC

South Carolina Code Section 42-1-130 specifically includes undocumented immigrants in its definition of employee for purposes of worker's compensation:

The term "employee" means every person engaged in an employment under any appointment, contract of hire, or apprenticeship, expressed or implied, oral or written, including aliens and also including minors, whether lawfully or unlawfully employed...

We also have caselaw affirming that an employer cannot deny benefits to a worker solely on the basis of their immigration status.

In Curiel v. Env. Management Services, 655 S.E.2d 482, 376 S.C. 23 (S.C., 2007), the S.C. Supreme Court held that a Mexican national, who admittedly used fraudulent documents to obtain employment, was entitled to worker's compensation benefits under S.C. law.

The Court found that the IRCA does not preempt South Carolina's worker's compensation laws. Although the IRCA prohibits employers from hiring illegal immigrants, it does not prohibit payment of benefits to immigrant workers.

Furthermore, if the state were to deny protections to immigrants, it would encourage unethical employers to hire immigrants, so they could then avoid payment of benefits:

Further, allowing benefits to injured illegal alien workers does not conflict with the IRCA's policy against hiring them. To the contrary, disallowing benefits would mean unscrupulous employers could hire undocumented workers without the burden of insuring them, a consequence that would encourage rather than discourage the hiring of illegal workers.

We find IRCA does not preempt state law and Claimant is not precluded from benefits under our Workers' Compensation Act.

Does the Fair Labor Standards Act (FLSA) Apply to Undocumented Workers?

Nationwide, even in the states that do not allow undocumented workers to collect worker's compensation benefits, the federal courts have held that illegal immigrant workers are entitled to the protections of the FLSA.

If an employer violates the FLSA by not paying overtime wages or by paying less than the minimum wage to an undocumented worker, that worker is entitled to sue for backpay and other damages under federal law.

Were You Denied Worker's Compensation in SC Based on Your Immigration Status?

If you are an undocumented worker and your employer is attempting to take advantage of your immigration status in Myrtle Beach, Conway, or Rock Hill SC, call now and schedule a free consultation with a Myrtle Beach worker's compensation lawyer on the Axelrod team.

Se Habla Español. Call us at (843) 916-9300 or fill out our contact form to find out what your rights are.

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Axelrod & Associates, P.A.
4701 Oleander Drive, Suite A
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Phone: 843-353-3449
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