An estimated eight million undocumented immigrants are currently working in the United States. Despite their legal status, nearly all fifty states have determined that injured undocumented workers have the same rights to workers’ compensation benefits as others. However, a recent joint investigative report from National Public Radio (NPR) and ProPublica about a quirk in Florida’s workers’ compensation law suggests that some insurance companies are using deportation as a means to avoid workers’ compensation payments.
Workers’ Compensation Law with a “Catch”: Deportation
Like most states, Florida gives injured undocumented workers the same access to workers’ compensation benefits as their counterparts with legal status – with one notable “catch.” In 2003, Florida lawmakers passed legislation making it a crime to file a workers’ compensation claim using false identification. Since then, NPR and ProPublica allege, insurance companies in Florida have begun turning undocumented workers into the state in order to avoid making workers’ compensation payments for their lost wages and medical care, often resulting in deportation. Drawing on fourteen years of Florida state insurance fraud data, NPR and ProPublica found nearly 800 cases in which employees were arrested under this law, including 130 injured workers.
The charge for using false identification for a workers’ compensation claim is felony workers’ compensation fraud. Even though an undocumented worker’s injuries are real, and even though the injuries happened on the job, that worker is still considered guilty of fraud if the identification used to make the workers’ compensation claim is fake, as is typically the case with undocumented workers. What is more troubling, according to immigration advocates cited in the investigative piece, is that this interpretation of workers’ compensation fraud is used against undocumented workers who are not injured.
Workers’ Compensation Fraud Without a Workers’ Compensation Claim
The same law that made it a crime to file a workers’ compensation claim with a false ID also made it illegal to use a fake ID to obtain a job. This has led the state’s insurance fraud unit to conduct sweeps of work sites and arrest employees for workers’ compensation fraud after merely checking their Social Security numbers. In fact, after reviewing Florida’s state insurance fraud data, NPR and ProPublica found that 125 workers were arrested when others’ workplace injuries prompted the insurance fraud unit to check the personnel records of other employees. And with the election of the Trump administration, immigrant advocates worry that what is happening in Florida could be a harbinger of the future in other states.
ICE Crackdown on Undocumented Workers
Donald Trump campaigned for the presidency in part by advocating a “crackdown” on illegal immigration. Since taking the presidency, he has made moves to enact those promises, as can be seen with his recent rescinding of former President Obama’s executive order establishing Deferred Action for Childhood Arrivals (DACA), which allowed some 800,000 illegal immigrants who entered the country as minors to receive a renewable two-year period of deferred action from deportation and eligibility for a work permit.
One of President Trump’s first executive orders broadened the priorities of Immigration and Customs Enforcement (ICE) to include not just immigrants charged with or convicted of crimes but also immigrants merely suspected of them. Also included in the order is language targeting immigrants who have “engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency.” Immigrant advocates argue that such language would apply to countless injured undocumented workers since medical facilities and state workers’ compensation bureaus typically request Social Security numbers as part of the claims process.
In fact, anecdotal evidence suggests that ICE is already doing just that. The investigative piece cites the recent case of a Massachusetts construction worker who fractured his femur when he fell from a ladder at a work site. Shortly after meeting with his boss to discuss getting help for his injury, he was detained by ICE agents.
In Florida, detectives working on behalf of workers’ compensation insurance companies routinely flag immigrant workers with fake documentation to state fraud investigators. Not only do the insurance companies use this as a pretext to deny claims, but the state investigators have used this information to arrest the injured undocumented workers at workers’ compensation depositions and doctor’s appointments. According to NPR and ProPublica, one in four of these arrested workers were subsequently detained by ICE or deported.
On a related note, Ohio’s state House of Representatives recently passed a bill that would have barred undocumented immigrants from getting workers’ compensation benefits. Though the bill stalled in the state Senate, many worry that such legislation may be a harbinger of things to come in the current environment.
Is Workplace Safety a Casualty?
Even though injured workers are entitled to workers’ compensation benefits regardless of legal status, those who are undocumented may find themselves thrown out of the country if they try to collect them. Consequently, many such workers are choosing not to report their injuries for fear of reprisal, a development that advocates claim could have negative consequences for workplace safety.
For example, David Michaels, the current head of the federal Occupational Safety and Health Administration, worries about the impact of immigration enforcement on the work environment. ”It’s infuriating to think that when workers are hurt in the United States, they’re essentially discarded,” Mr. Michaels said. “If employers know that workers are too afraid to apply for workers’ compensation, what’s the incentive to work safely?” Therefore, even if a worker has legal status, his or her own safety at a work site may be compromised because of the crackdown on undocumented workers.
Workers’ Compensation Claims
Regardless of legal status, workers’ compensation claims can be complicated. Many injured workers find that they benefit from the guidance of an experienced and knowledgeable attorney, like the workers’ compensation attorneys at GWC Injury Lawyers, Illinois’ largest Workers’ Compensation and Personal Injury law firm.
If you have been injured in the workplace, please contact GWC today to schedule a free consultation with one of our workers’ compensation attorneys. Call our office at (312) 464-1234 or click here to chat with one of our representatives.