According to the most recently available data, there are 8.5 million undocumented workers in the US workforce. Of those, the highest proportion is employed as construction laborers. That reality means there are thousands of undocumented workers in hazardous professions, where injuries are common. It’s a situation that poses an interesting dilemma: what happens when an undocumented worker gets hurt on the job? Do they have the right to seek medical care at their employers’ expense? Can they seek compensation through US courts? Here’s an overview of the rights of undocumented workers who suffer workplace injuries.
Workplace Protection Extends to All Workers
Put simply, every worker in the US has the right to seek compensation for workplace injuries. Federal labor laws apply to all employees, regardless of immigration status. Additionally, employers have the same workplace safety obligations to undocumented workers as they do to anyone else. That means they must maintain safe working conditions, provide appropriate safety gear, and have documented procedures for workers to report unsafe conditions.
State labor laws also apply to all employees, regardless of immigration status. In fact, there are 36 states that either explicitly include undocumented workers in their labor laws or have issued guidance to that effect. Wyoming is the only state where that’s not the case, since its labor laws specifically exclude the undocumented.
Dealing With Fear of Retaliation
Unfortunately, undocumented workers are, as a class, uniquely vulnerable to retaliation by employers resulting from an injury claim. Nevertheless, it’s important to recognize that undocumented workers benefit from the same anti-retaliation laws as other employees. The Occupational Safety and Health Administration (OSHA) even has the legal authority to issue special visa certifications to undocumented workers who participate in any workplace safety investigation. While the certification doesn’t confer legal status, an injured undocumented worker can use it to request temporary protection from deportation proceedings. In California, it is illegal to report an undocumented person to ICE just because they have reported a workplace injury.
A Post-Injury Guide for Undocumented Workers
In the event of a workplace injury, undocumented workers need to take specific steps to safeguard their rights. Here’s a step-by-step guide they can follow:
Seek Immediate Medical Attention
It’s vital for any injured worker to seek immediate medical attention as soon as possible. That helps establish a timeline of the incident that traces directly back to their workplace. It also creates medical records detailing the injury shortly after it occurred.
Report the Injury to Your Employer
Next, report the injury to your employer so they can meet their workplace safety reporting obligations. Depending on the state, employees have between 3 and 90 days to report a workplace injury. At that time, the employer should provide detailed information about your rights and workers’ compensation benefits. They should also provide the forms necessary to start the process.
Document Everything
To the extent possible, it’s a good idea to document every aspect of the situation that led to the injury. That should include photos of the injury itself and the location where it occurred. It should also include records of all communications with your employer regarding the injury.
Contact a Lawyer
Finally, an injured undocumented worker should immediately consult with a personal injury attorney. They can assist with ensuring protection against retaliation as well as with filing additional claims in court.
Worker Safety Knows No Nationality
The bottom line is that US law, with few exceptions, makes no distinction between the rights of citizens, work-authorized persons, and undocumented workers concerning workplace injuries. Undocumented workers should never let fear of retaliation dissuade them from seeking compensation for a workplace injury. However, they should seek legal advice from a qualified attorney as soon as possible after suffering one.
