What Rights Do Undocumented Workers Have If Injured on the Job?


Noe Escamilla, a construction worker and undocumented immigrant from Mexico, was injured in 2010 when he and other construction workers were lifting a large stone at a construction site in Crawfordsville, Indiana. His injury left him unable to work in construction. He sued the Shiel Sexton Company, one of the largest construction management companies in Indiana, for medical expenses, lost wages, and the loss of future income.

In most other states where the issue has come up, undocumented workers are able to seek workers’ compensation benefits or file a personal injury claim against a company without having their immigration status at issue.

However, in Escamilla’s case, a trial court ruled earlier this year that he could not seek lost wages because of his immigration status. When the ruling was appealed, the appeals court, in a divided ruling, affirmed the ruling. It held that his immigration status is valid evidence in his personal injury case in deciding what his future earning potential is — that the value of the evidence outweighs the prejudice to Escamilla. Shiel Sexton argued that his earnings should be based on what he could earn in Mexico, where he is a citizen, rather than in the U.S.

A request for rehearing by the Court of Appeals was denied. The case is currently being heard by the Indiana Supreme Court.

First-Time Issue for Indiana Courts

This case is a case of first impression for Indiana courts, meaning that the main issue is one that had never been addressed by Indiana courts. The issue of undocumented immigrants being eligible for workers’ comp or seeking personal injury damages has, however, been addressed by more than 20 other state and federal courts, and 20 of those courts have ruled that undocumented immigrants are entitled to lost U.S. wages when injured on the job. These include large states with significant undocumented immigrant populations, such as Texas, New York and California.

Many have also ruled that immigration status is not admissible at all as evidence in a civil case.

The potential problem with these rulings was articulated by Judge John Baker, who dissented from the majority opinion on the Indiana Court of Appeals case. Baker states that Escamilla’s immigration status was too prejudicial and should not have been admitted. He also stated that the majority opinion creates a wrong incentive for companies to hire undocumented immigrants, knowing that the company’s liability and risk with regards to undocumented immigrants will be low.

This can potentially make a bad situation worse. Hispanic immigrant workers already work in some of the most dangerous occupations in the U.S., and assume more risks than U.S. citizens on average. According to the Bureau of Labor Statistics, the workplace fatality rate for Hispanics has been the highest among all groups in the U.S. for 15 years. Employers are aware of the risks that undocumented workers are willing to take in order to work, and they exploit this. Penalties for U.S. companies hiring undocumented workers are already generally nothing more than a slap on the wrist (minor fines).

Many Americans have strong feelings about immigration, illegal or not, so it is difficult to imagine how making immigration status an issue in a jury trial for personal injuries would not be extremely detrimental to an undocumented immigrant seeking damages for an accident on the job.

Even if such cases are allowed, and undocumented immigrants are able to win their case, if they are compensated for their injury in pesos, or whatever the currency and wage is for their home country, it will be a great disservice, especially to someone who can no longer work in their occupation because of an injury they received at work.

How Many Undocumented Workers Are in Indiana?

According to the Migration Policy Institute, there are about 93,000 unauthorized immigrants living in Indiana, and a total of about 315,00 foreign-born residents, which include legal immigrants, undocumented immigrants, and people who have become naturalized citizens.

Most of the undocumented immigrants in India are from Mexico (69%), and about 13% of them come from Asia. Most of them — almost 80% — are believed to have lived in the United States for at least 5 years, and around 10,000 of them are children who attend Indiana public schools.

Escamilla may have been undocumented at the time of his accident, but he would now be considered a low risk for deportation. He is married to an American citizen and has U.S.-born children. He is waiting for the result of his permanent resident application, and is not currently out of status or undocumented. There is a waiting time of a few years involved, but he is permitted to stay in the U.S. until he receives the result.

If I Am an Undocumented Worker, Can I Get Workers’ Compensation?

Unless the Indiana Supreme Court rules otherwise, it is likely that an illegal immigrant would be able to get workers’ compensation. The result of the Indiana Supreme case is expected soon. Even if it looks like there are few options for undocumented immigrants to receive compensation for their occupational injuries, we may be able to help you. Call us today so we can help you navigate this difficult period.

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