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Are Undocumented Workers Entitled to Workers Compensation in New York?

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Employers who hire undocumented workers rely on their desire to remain unnoticed by government entities to bypass certain regulations for wages, time off, and workers’ compensation benefits. However, workers’ compensation for undocumented workers is a protected benefit offered to all workers injured on the job, regardless of immigration status.

When you need an experienced workers’ comp lawyer in New York, turn to our firm, Pyrros, Serres & Rupwani LLP. We’ve represented workers from across the city since opening our doors in 2001. Contact us today to schedule your free case evaluation.

Qualifying for Workers’ Compensation in New York

To qualify for workers’ compensation, you must be a regular employee (not an independent contractor) and work in New York, or be employed by a N.Y. employer. This includes employees who bypassed appropriate checkpoints to enter the U.S. or employees who overstayed their visas. Eligible employees include:

  • For-profit business employees
  • Many not-for-profit organization employees
  • Employees who work in the state of New York
  • Employees who live outside of New York but travel to New York for work

What Will Workers’ Compensation Cover?

If the Workers’ Compensation Board approves your claim, you may have access to certain benefits. Workers’ comp benefits will cover:

  • Medical expenses for your work-related injury
  • Two-thirds of your average weekly wages up to the allowable maximum
  • Travel expenses to and from medical appointments

All eligible employees qualify for workers’ compensation coverage. However, filing a claim doesn’t necessarily mean it will be approved. Having an experienced undocumented workers compensation lawyer on your side can help you complete the necessary paperwork and provide the necessary evidence for your claim to receive workers’ compensation benefits.

How to File a Claim for Workers’ Comp Benefits

You should notify your employer as soon as possible and within 30 days of your work-related injury or illness. Seek medical treatment immediately and request documentation for your claim.

After notifying your employer, fill out your C-3 Employee Claim Form and submit it online to the Workers’ Compensation Board. To complete your C-3 Employee Claim Form, you will need:

  • Your contact details
  • Employer information
  • Your job title and duties
  • Your gross weekly rate of pay
  • Details about the injury or illness
  • Nature of the injury or illness, including body parts affected, lost time from work due to the injury, and whether you received medical attention or treatment

One thing you don’t need to file a workers’ comp claim is a social security number, allowing immigrants of any status to complete a claim form and receive workers’ compensation benefits.

Protections for Undocumented Workers Under State and Federal Law

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Federal law under the Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for employers to hire undocumented employees in the U.S. However, the New York Court of Appeals ruled in a landmark case (Balbuena v. IDR Realty, LLC) in 2006 that a worker’s undocumented status does not preclude them from claiming benefits for hours worked or lost wages due to a workplace injury.

Undocumented workers entitled to workers’ compensation benefits should retain an experienced workers’ comp attorney from our firm as soon as possible after your workplace accident. Your employer may attempt to use your undocumented status against your claim, potentially requiring legal action to move forward with receiving the appropriate benefits.

Attorneys for Undocumented Immigrants, Workers’ Compensation, and Personal Injury Claims

Having a knowledgeable attorney who has successfully argued for workers’ compensation for undocumented workers in the past is essential for your case. There are several ways an employer might attempt to misrepresent your claim, including:

  • Concealing duties provided by the employee necessary for classification
  • Paying employees under the table or off the books
  • Failing to report wages earned by undocumented workers
  • Intentionally misrepresenting information necessary to calculate the workers’ compensation insurance premium
  • Classifying job roles incorrectly to a less hazardous job description

Your employer may also attempt to fire you illegally or falsify other information about your employment or injury to deter you from following up on your claim with the Workers’ Compensation Board. A skilled attorney can help you file the appropriate documentation and gather other evidence as necessary for your claim.

Contact an Experienced Workers’ Compensation Attorney for Undocumented Workers in New York

Workers’ compensation for undocumented workers is an essential benefit employers must provide in New York. Learn more about workers’ comp on our legal blog, including what not to do while on workers’ comp.

Our firm has helped injured employees claim their rightful workers’ comp benefits for over 20 years. For help with a workers’ compensation claim as an undocumented employee in New York City, call us at Pyrros, Serres & Rupwani LLP at (718) 626-7730 or contact us online to schedule a free case evaluation.

FAQ

Check out our frequently asked questions below to learn more about claiming workers’ comp benefits as an undocumented employee in New York.

Can an employer fire an undocumented worker for claiming workers’ comp?

No, employers cannot fire any employee of any status for claiming workers’ compensation benefits. While employers do not have to keep your job open for your return after you recover, the federal Family and Medical Leave Act (FMLA) can protect your job status with up to 12 weeks of unpaid leave. Other laws also protect injured employees from discrimination while on leave.

Do undocumented workers qualify for workers’ compensation coverage in New York?

Yes, any worker who works for a company based in New York as a regular employee (not an independent contractor) qualifies for workers’ compensation, regardless of immigration status. This includes workers’ compensation for undocumented workers who suffer a work-related injury or illness at their jobs.

Will an undocumented employee who claims workers’ comp benefits be deported?

Filing a workers’ comp claim as an undocumented worker will not trigger involvement from immigration officials, but some employers may retaliate against claims by contacting Immigration and Customs Enforcement (ICE). Speaking with an experienced undocumented workers lawyer for your workers’ comp claim as soon as possible is essential if you could be at risk for deportation.

You may have legal options for deferment of deportation, including a pending immigration case, Temporary Protected Status (TPS), or other Deferred Action status like DACA; learn more about workers’ compensation for undocumented workers by reaching out.

About The Author

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Michael Serres, ESQ.

Michael Serres, ESQ. is a reputed Workers’ Compensation Lawyer in Astoria, Queens, NY. He graduated from St. John’s University School of Law in 1989. Mr. Serres was admitted to practice law in New York State in 1990 and is admitted in the Federal District Courts for the Southern and the Eastern Districts of New York. He has served on the Board of Directors of the Workers’ Compensation Bar Association and is currently serving on the Board of Directors of the Queens County Bar Association.