Undocumented Workers as Workers’ Compensation Beneficiaries

With illegal immigration and the presence of undocumented workers within the workforce being a long-standing political issue, the question may arise whether or not an undocumented worker is defined as an “employee” for purposes of receiving workers’ compensation benefits.  The answer to that question varies state-by-state, ranging from express statutory inclusion of undocumented workers as employees or through case law interpreting the state’s workers’ compensation statute as excluding undocumented workers.  California, for example, defines an employee as “every person in the service of an employer . . . whether lawfully or unlawfully employed, and includ[ing] aliens and minors.”  CAL. LAB. CODE § 3351 (2007).  Wyoming, on the other hand, only provides workers’ compensation benefits to those employees “authorized to work by the United States Department of Justice,” implying that illegal aliens are not covered employees.  WYO. STAT. ANN. § 27-14-102(a)(vii) (2006).

At home in Louisiana, the workers’ compensation statute is silent on status, simply defining an employee as a “natural person who is paid compensation in return for the performance of services.”  La. R.S. 23:1015.1.  However, Artiga v. M.A. Patout & Son, 95-1412 (La. App. 3 Cir. 4/3/96), 671 So. 2d 1138, held that the Louisiana Workers’ Compensation Act does not exclude undocumented workers/illegal immigrants from securing workers’ compensation benefits when justified.

Deciding whether or not undocumented workers are entitled to workers’ compensation benefits (and to what extent) is a policy consideration.  The state courts and the state legislatures must weigh the benefits of penalizing undocumented workers for their illegal employment (and simultaneously rewarding employers for illegally employing them by limiting liability) versus applying workers’ compensation laws blindly against immigration status.