My Injured worker is an illegal alien. Do I have to pay him?

The title may sound harsh or deliberately charged so, stated another way, My injured worker is undocumented.  Do I have to pay him?    Well, as with most answers that you will get from an attorney, "it depends." 

First and foremost, ANY worker that you have in your employ that is injured in an accident arising out of an occurring in the course of his employ is entitled to medical treatment for his COMPENSABLE injuries.  That is not to say that claims of injury for which you have an otherwise viable defense are treated any differently.  On the contrary, Georgia law is perfectly clear on this point that based upon that person's presence and employment in Georgia, he is entitled to the equal protection of its laws.    That much was settled in 1993 in the case of Barge-Wagener Const. Co. v. Morales, 263 Ga. 190, 429 S.E.2d 671 (1993).  In that case, the Georgia Supreme Court invalidated a provision of the Georgia Workers' Compensation Act concerning payments made to dependents of workers who died as a result of compensable injuries in Georgia.  The statutory provision in question provided for lesser benefits to surviving dependents who did not reside in the United States.  Citing a decision from Florida, the Court held:

 

'[W]e do not perceive this case as hinging on the constitutional rights of the surviving dependents, but on the constitutional rights of the worker, now deceased.... This case concerns whether a worker who happens to have dependents residing out of the country is entitled to the same fruits of his or her labor as any other worker, including the same insurance benefits where the state has required those benefits to be provided. It thus is immaterial that petitioners happen to be nonresident aliens, since they have standing in this context as his beneficiaries.'

We should reach the same conclusion here in Georgia because, as was the case in Florida, the benefits in question were generated by the employee's labor and flowed through him to the intended beneficiaries, his dependents. We should recognize their standing to enforce the rights which Mr. Morales earned by his labor while resident in this country.

 

The bottom line is that the injured worker's presence in the United States that confers upon him  the right to enforce benefits for a compensable under Georgia Law.  Morales  extended standing to enforce rights conferred by Georgia Law to his surviving dependents, .  As well it should.   Employers should be encouraged and required to follow both Federal Immigration law and Georgia Workers' Compensation law by endeavoring to hire those eligible to work while at the same time protecting everyone they do hire.

In 2004, another run was made at the idea of disqualifying illegal/undocumented from the Georgia Workers' Compensation Act  in the case of Continental PET Technologies, Inc. v. Palacias, 269 Ga.App. 561, 604 S.E.2d 627 (2004).  In Palacias, the employer pointed to the requirements of the last great immigration solution, the Federal Immigration Reform and Control Act of 1986 (IRCA) in support of its position that the injury should not be covered.  Citing IRCA, the employer argued that Federal law prevented the knowing hire of illegal aliens/undocumented immigrants and prohibited the use of fraudulent documents to obtain employment.   The Employer argued that the terms of IRCA would preempt state law and thus render Ms. Palacias ineligible for employment and, by extension, workers' compensation benefits.  The Georgia Court of Appeals rejected the preemption challenge holding that IRCA was not intended to preempt state workers' compensation laws.    This holding was in line with decisions in other states such as Florida and Minnesota. 

The Employer's next argument was that Ms. Palacias perpetrated a fraud in presenting fake documents to get hired and that her fraud voided the employment contract from the beginning.  In essence the employer wanted the court to hold that Ms. Palacias was not an employee and, therefore not subject to coverage under the workers compensation act.  The Court rejected that argument holding that there was no causal connection between the misrepresentations and the injury. 

The Georgia Court rulings make sense when one considers not only the law, but also when one considers the implications of a different finding.  Were employers able to claim that compensation for medical treatment for an otherwise compensable injury can be denied with impunity if the injured worker happens to be illegal/undocumented, the incentives would then be for the employer to hire such illegal/undocumented workers and to treat them as a disposable commodity.  The problem would then NOT be solved,  but magnified. 

What about INCOME benefits though?  More on that tomorrow....


"Skedsvold, White & Wesley
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