Workers’ Comp Laws for Migrant Workers



Migrant or seasonal workers struggle under immigration and employment laws that are often discriminatory. As a result, almost half of farm workers have no access to benefits if they suffer an injury. With farming being one of the more hazardous working environments—agriculture has the highest death rate of workers—migrant workers are at significant risk if they become injured on the job.

Workers’ compensation operates as an alternative to the tort system, allowing injured employees to receive benefits without having to sue their employer. Many migrant workers are hired without immigration status, so their status under compensation laws depends on how a state handles them. Compensation laws are changing for the worse for illegal workers. 

A decision by the U.S. Supreme Court in the case of Hoffman Plastics vs. NLRB, 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002) has set the tone for many states to limit or eliminate benefits for illegal aliens.

Employers are also an impediment to compensation or benefits. Because many employers hire illegal aliens knowingly, they don’t want any form of scrutiny. A migrant employee, even with status, may be bullied by their employer into not making a compensation claim. 

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Status definitions that affect workers’ compensation benefits

The status of migrant workers is complicated because each state has its own laws and legal definitions of status. Here are some explanations for phrases commonly in use:

“Illegal immigrant”

A worker is considered an illegal immigrant if they’ve entered the country without official permission to live there. A person is illegal if they have:

  • entered the country without a visa or entry document;
  • overstayed their visa;
  • re-entered the country after having been removed from the United States;
  • used fraudulent documents to enter; 
  • violated travel restrictions while on a temporary visa;
  • Impersonated a U.S. citizen to gain residency.

“Unlawful employment”

Unlawful employment covers many illegal situations like child labor or unreported employment (often referred to as employment under the table). It’s also prohibited to employ a person who is an illegal immigrant. Employers who knowingly hire illegal immigrants often do so because of the employee’s vulnerability and may take advantage of them. These employers face severe fines if found out and will threaten or bully injured workers from even seeking medical help. 

“Aliens and minors legally or illegally permitted to work for hire”

In Arizona, compensation laws include any person employed in their state regardless of their age or whether they are or are not unlawfully employed.

State-by-state status

Some states, like California, insist on fair compensation laws for all, regardless of status. If injured on the job, all workers in California are eligible for workers’ compensation, and they can receive the benefits necessary to get the treatment they need.

Some state legislation, like Alaska, is utterly silent on the subject of illegal immigrants as workers. In this case, an illegal immigrant isn’t recognized by the law. Any attempt to get compensation in the case of injury will have no rights according to the law. 

Any illegal immigrant who has been injured should check this list to determine how their state handles migrant workers and compensation.

When to call a workers’ compensation attorney

Undocumented workers are at significant risk when they attempt to sue employers for compensation. They can be reported to U.S. Immigration and Customs Enforcement’s (ICE) and further risk deportation. Some states, like California, disallow the practice of reporting an employee because that employee has exercised their rights under the employment code. Still, in many states, migrant workers enjoy no such protections. 

If you’ve been injured on the job or suffered the loss of a loved one and haven’t been able to get workers’ compensation in a state that allows for such, contact a workers’ compensation attorney. 

How a lawyer can help 

A lawyer can determine an employee’s rights under your state’s laws and what risks an employee might face for attempting to exercise their rights. A lawyer will help you navigate the laws of the various levels of government and get you the compensation you deserve. If you’re a migrant worker looking for legal representation because you feel you’re due workers’ compensation, contact LegalASAP today.