Does Workers’ Comp Cover Illegal Immigrants?

Workers’ compensation was initiated to encourage employers to keep working conditions safe for their employees – or pay the consequences. As such, the law does not allow for any discrimination based on work status.

Yet, in our firsthand experience, some employers and insurance companies may try to convince workers who are not U.S. citizens to settle for much less than they may be entitled to – or even deny them benefits altogether. We’ve had some insurance adjusters tell our clients that they’re “lucky to get any amount” no matter how small it is, just because they are undocumented. This is not true. We’ve also had some employers lie to our clients (and to us!) to try to avoid paying benefits. This is not acceptable.

I know of non-U.S. workers, especially those who are not in the country legally, who are afraid of repercussions and are willing to accept any settlement offered just to avoid making a claim. In the construction industry, for example, 75% of non-fatal injuries to Hispanic workers go unreported, according to the Center for Construction Research and Training.

I have been helping protect workers’ rights for more than 25 years, and I have seen how illegal immigrants may be mistreated by some employers when it comes to workers’ compensation benefits. In this article, I will answer some of the common questions that I hear from undocumented workers in North Carolina.

Am I Eligible to Receive Workers’ Compensation Benefits as an Undocumented Worker in North Carolina?

Yes, you may be eligible to receive workers’ comp benefits – even if you are an illegal immigrant. In North Carolina, workers’ compensation benefits can’t be denied to any person because he or she is not a U.S. citizen.

Workers’ compensation law applies to employees, and it defines an “employee” as follows:

“The term ’employee’ means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or writtenincluding aliens, and also minorswhether lawfully or unlawfully employed…”

NC General Statute 97-2-2 expressly includes illegal aliens in the Workers' Compensation Act.The law assumes that your employer has automatically agreed to pay compensation for an eligible personal injury or death by accident that happens while you are doing your job.

In North Carolina, almost every employer with three or more employees has to offer workers’ compensation to all of their employees, and that includes undocumented workers, too. No matter how the employment agreement was (or wasn’t) made, you may be covered for your injuries, even if you have nothing in writing.

In the end, it typically doesn’t matter under the law if you are undocumented, or if the work relationship was by verbal agreement, or if you had a contract in writing. Any employee who suffers an injury or an accident while on the job may be entitled to workers’ compensation.

It’s straightforward in North Carolina. Are illegal immigrants eligible for workers’ comp? Yes.

What Types of Workers’ Comp Benefits May I Receive?

If you are an undocumented worker in North Carolina, you may be entitled to the same types of workers’ compensation benefits as U.S. citizens, such as:

  • Lost wages
  • Payment for medical bills
  • Payment for permanent injury to a body part

In the video below, I go into more detail on each of these three major types of workers’ comp benefits:

Having a right to these benefits and actually receiving these benefits are two different things. Unfortunately, undocumented workers may encounter abusive practices by some employers and insurance companies who want to limit their expenses.

Don’t be intimidated. Arm yourself with knowledge about your rights. Talk to a workers’ comp attorney as soon as you are injured. Contact the Law Offices of James Scott Farrin for a free and confidential case evaluation today.

Can I Negotiate Benefit Amounts With the Insurance Adjuster?

You can try, but I don’t advise that you attempt to negotiate workers’ comp benefits amounts on your own. There is no magic workers’ comp benefits calculator, and every case is unique. I advise you to find an experienced attorney who will know which questions to ask of the doctors, how to read the medical reports, and how to negotiate with the insurance adjuster. That way, you can focus on your recovery while your attorney takes care of everything else.

What Do I Do if My Employer Claims That I Don’t Work for Them?

Sadly, this can happen occasionally. But, the fact that your employer lied about your employment does not necessarily have to result in you being denied workers’ comp benefits. Here’s a real-life story that demonstrates the extremes some employers may go to in order to skirt their responsibility to their employees:

We took on a case of an injured worker who was not a U.S. citizen and had sustained a catastrophic injury at work. Although the employer hired this undocumented worker, after the injury they denied any knowledge of him. And if that’s not disgraceful enough, the workers’ compensation insurance company sided with the employer and rejected our client’s claim.

A non-U.S. citizen working in a field of green vegetables.Left with severe disabling injuries, no job, and no income to pay for a place to live, the injured worker retained our firm for help. As if the blatant deceit on the part of the employer and insurance company were not enough, what underscored this situation for our team working with this client was that the insurance company was rudely unsympathetic toward our client’s precarious circumstances.

We felt that this treatment should not be tolerated. We obtained documentation that proved the employer had lied – lied about our client’s employment and lied about not having anything to do with him. And we turned a denied workers’ comp case for that injured worker, who had little education and little recourse outside of our representation, into a six-figure settlement.1 

If you were injured on the job, and your employer is denying your employment, give the Law Offices of James Scott Farrin a call at 1-866-900-7078 for a free and confidential case evaluation. Workers’ comp for undocumented workers can be complicated. We have experienced attorneys who have tackled many of the different tactics some employers may use to avoid paying workers’ comp benefits. And we are dedicated advocates for our injured clients, including illegal immigrants and undocumented workers.

Can I Receive Workers’ Comp With a Fake Name or Social Security Number?

While you should not use a fake name or a fake social security number, you may be entitled to workers’ comp benefits even if you did use a fake name and Social Security number with your employer.

In the landmark case Gayton v. Gage Carolina Metals, Inc., Ruperto Gayton, an undocumented worker who had presented a false Social Security card and a false resident alien card when he was hired, injured his back while he was moving a pallet, and he herniated two discs. The court ruled that Mr. Gayton was entitled to workers’ compensation benefits.

The insurance company and employer (who had built a case around trying to get out of its responsibilities, not about whether Gayton had presented fake documents) accepted the claim and began paying for his Temporary Total Disability.

Can I Get Workers’ Comp Benefits if My Employer Misclassified Me as an Independent Contractor?

If you can prove that your employer deliberately misclassified you as an independent contractor, you may still be able to seek workers’ comp benefits. Some employers may intentionally misclassify workers as independent contractors to avoid paying payroll taxes, contributing to Social Security, or paying workers’ comp and unemployment insurance. This is an abuse of power and influence.

If your employer gave you a 1099 tax form instead of a W-2, they are treating you like an independent contractor, and you do not have eligibility for workers’ compensation benefits if you are injured on the job. I strongly advise you to seek the assistance of a workers’ comp attorney to fight for those benefits if you feel that you have been purposely misclassified.

How Can a Lawyer Help My Workers’ Compensation Case?

A skilled lawyer can help you with your workers’ compensation case in many ways. The process of applying for benefits can be tricky, and the process for appealing a denied claim can be downright intimidating!

A lawyer can help you:

  • Stick to the schedule and not miss important deadlines
  • Follow the required procedures and avoid mistakes
  • Try to obtain needed medical care and follow-up treatment
  • Fight to protect your rights at work
  • Negotiate with the other side

Unfortunately, some employers may try to take advantage of undocumented workers who don’t know their eligibility for workers’ comp benefits. I know of situations where employers have even bullied or threatened the workers because they don’t want to pay workers’ comp for undocumented employees.

But workers’ compensation laws were created to protect employees, regardless of their immigration status, and undocumented workers should not sacrifice their rights. I know this well – when I was a North Carolina state senator for four terms, I helped write some of those workers’ comp laws for our state.

I also served as a Deputy Commissioner at the North Carolina Industrial Commission and presided over 500+ workers’ comp hearings. And at the Law Offices of James Scott Farrin, our workers’ compensation department has been recognized by U.S News – Best Lawyers® as one of the “Best Law Firms” for workers’ compensation for the greater Raleigh area in 2019, 2020, and 2021.3

We know workers’ comp, and we care. Our team will fight to try to get undocumented workers compensation for their work-related injuries. Contact us today and tell them you mean business.

 

3For more information regarding the standards for inclusion for U.S. News – Best Lawyers® “Best Law Firms,” visit: https://bestlawfirms.usnews.com/.

About the Author

Doug Berger practices workers’ compensation law at the Law Offices of James Scott Farrin and is one of fewer than 160 North Carolina State Bar Board Certified Workers’ Compensation Specialists licensed to practice in the state.a Doug was recognized on the “Best Lawyers” list for Workers’ Compensation Law – Claimantsb by Best Lawyers in America in both 2021 and 2022. He was also a four-term North Carolina State Senator.

aFigure provided by NC State Bar as of 2/21.

bFor information on standards of inclusion, visit bestlawyers.com.

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I want to thank everybody who worked on my case at James Scott Farrin.

I want [to] thank everybody [who] worked on my case at James Scott Farrin. They did a very professional and great job. I would recommend them to anybody that was ever looking for a lawyer, and I definitely would use them again. 1

For legal reasons and client confidentiality, reviews have been slightly edited to remove identifying information and correct typos.