Employees Working Illegally Are Entitled to Workers' Compensation Benefits

Many people in the United States without proper work authorization do not file a claim for benefits because they fear that they are not entitled to them.  If you are working in the United States illegally, and you are injured on the job, you should still file for Workers' Compensation benefits.  

The Nebraska Supreme Court recently clarified this issue in Moyera v. Quality Pork Int'l.  In this workers’ compensation case, the primary issue was whether Ricardo Moyera, an illegal alien, was entitled to benefits for permanent total loss of earning power.  The trial judge awarded these benefits, and the review panel affirmed.  The Nebraska Supreme Court held that because the Nebraska Workers’ Compensation Act (Act) applies to illegal aliens working for a covered employer in this state, these employees are entitled to permanent total disability benefits (PTD benefits) for work related injuries. 

The parties stipulated that Moyera was injured in an accident arising out of and in the course of his employment with Quality Pork International (QPI). Moyera is from Mexico and cannot speak English. He is not a legal resident. He started working for QPI in March 2007. His other work history consisted of working as a laborer on a roofing crew and working with his father in Mexico as a crop fertilizer. He purchased papers to obtain work at QPI, which was the first time that he used the name “David Gutierrez.”

In August 2008, Moyera’s right foot was run over by a forklift. He was age 29. The forklift broke several bones across the top of his foot. QPI placed him in a light-duty janitorial position, cleaning the cafeteria, which allowed him to elevate his foot above his waist whenever it swelled. A personnel officer testified that she knew of no other regularly performed position in the plant that would allow an employee to elevate his 

feet like this; most of the jobs were for production, and QPI expected employees to meet a quota and work at a required pace. Moyera performed the light-duty work until May 2010, when QPI discharged him.

On May 18, 2010, Jensen responded to a questionnaire from Moyera’s attorney that Moyera’s injury, and its resulting nerve disorder and gait derangement, had resulted in a permanent 10-percent whole body impairment. He recommended a functional capacity evaluation. About this same time, QPI’s insurance carrier informed QPI that on May 21, it would terminate payments for Moyera’s temporary partial 

disability benefits and start paying permanent partial disability benefits. After QPI learned this information, its personnel manager audited QPI’s employment files and determined that Moyera did not have proper immigration documents. QPI discharged Moyera on May 28, 2010, after he could not produce proper 

documentation to show that he could legally work in the United States. The personnel manager denied that the immigration audit was related to learning that its insurance carrier would start paying Moyera permanent disability benefits; she stated that QPI also discharged other employees for lack of documentation. She claimed that Moyera’s work restrictions were consistent with the work that he was performing (cleaning the cafeteria tables) when QPI discharged him and that if he had produced the proper documents, he would have been retained in that position.

QPI argued that temporary disability benefits are different from permanent disability benefits because temporary benefits are limited to an employee’s healing period. In contrast, QPI contends that benefits for permanent loss of earning power should be barred—the same as vocational rehabilitation benefits—because they depend upon an employee’s ability to obtain lawful employment in the United States.

The Workers' Compensation Act Covers Illegal Aliens

The Court clarified that it agreed with the Court of Appeals that the Act covers illegal aliens. The Act provides benefits for employees who are injured on the job, and the Court broadly construes the Act to accomplish this beneficent purpose.  Section 48-115(2) defines employees, or workers, who are covered by the Act. It includes “[e]very person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in section 48-106 under any contract of hire, expressed or implied, oral or written, including aliens and also including minors.” (Emphasis supplied.)  Section 48-106(1) provides that the Act applies to the following employers: the State, state agencies, and “every resident employer in this state and nonresident employer performing work in this state who employs one or more employees in the regular trade, business, profession, or vocation of such 

employer.” Section 48-106(2) excludes specified employees in some occupations from coverage under the Act, but it does not exclude illegal aliens.  As the Court of Appeals concluded, the word “alien” ordinarily means a foreign-born resident who has not been naturalized in the host country and is still a subject or citizen  of the foreign country.  So the Court agreed that the ordinary meaning  of “aliens” is broad enough to include both legal and illegal  aliens, with or without work authorization.

 Moreover, “[i]f it was the intent of the Nebraska Legislature to exclude illegal aliens from the definition of covered employees or workers, it could have easily included a modifier doing so in the statute, but the Legislature did not, and has not, done so.” Additionally, the Court noted the Legislature has explicitly excluded some aliens from eligibility for unemployment benefits.  This exclusion illustrates that the Legislature would have excluded illegal aliens from the Act’s coverage if that had been its intent.  The Nebraska Supreme Court concluded that under the ordinary meaning of the terms used, the Act applies to undocumented employees under a contract of hire with a covered employer in this state.

If you have been injured at work and want to file for Workers' Compensation Benefits, you should consider contacting Angela Madathil.  Madathil Law Office specializes in employment and Workers' Compensation law in Nebraska, and offers free consultations.   

Madathil Law office serves Nebraska Workers' Compensation clients in Omaha, Lincoln, Lancaster County, Douglas County, Otoe, and Cass County Nebraska.  If need a Nebraska Workers' Compensation lawyer, consider contacting Angela Y. Madathil and the Madathil Law Firm.  

Contact us at angela@madathil-law.com or by telephone at 402.577.0686.  The firm offers free consultations.  For more information feel free to look at our website www.madathil-law.com.

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