In 2011, the U.S. Supreme Court passed on hearing a case that would shed light on whether federal law preempts state law when dealing with illegal immigrants and the issue of workers’ compensation. That decision means that the issue of illegal immigrants receiving workers’ compensation coverage solely rests with the states themselves.
The issue of illegal immigrants obtaining compensation benefits for a position they hold illegally is pressing for many lawmakers. One side feels that workers that are being employed, lawfully or not, deserve to be protected from potential injury. The other side feels that an illegal immigrant is not contributing to the community and thus should not receive proper employment benefits.
In Nevada, a workers’ compensation statute stipulates that an “employee” or “worker” is defined as being, “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully employed and include…aliens and minors.” This means that unauthorized workers, also known as illegal immigrants, are entitled to the same benefits as any other authorized worker in the state of Nevada.
However, the Supreme Court of Nevada held in Tarango v. State Industrial Insurance System, that while the statute explicitly includes illegal immigrants in its benefits package, such workers may not be entitled to the full compensation scheme.
The Court in Tarango felt that the federal Immigration and Reform Act (“IRCA”), was created in part to make it difficult to employ illegal aliens, and to punish employers who knowingly authorize their employment. Thus, allowing illegal immigrants access to all of the compensation benefits offered to lawfully employed workers would be contradictory to the federal act, specifically in terms of the provided benefit of vocational rehabilitation.
Vocational rehabilitation is a state and federally funded program designed to help people with disabilities become employed and to help those already employed perform more successfully through training, counseling and other support methods. The Court in Tarango decided that while illegal immigrants are included in the state’s definition for “employee” or “worker,” they are excluded from receiving vocational rehabilitation benefits but are eligible for other benefits such as medical care and compensation.
Immigration, and a path to potential citizenship, are currently major issues to monitor over the coming months. President Obama is placing Immigration Reform as one of his top priorities and is attempting to provide a path for citizenship to immigrants by meeting certain requirements that include a waiting period, paying a fee that includes fines and back taxes, and learning English. The Bill would likely provide citizenship for six years. If such a reform is enacted, more workers will be able to obtain full workers’ compensation benefit coverage in Nevada as well as throughout the country.
If you feel you need assistance in your workers’ compensation claim do not hesitate to seek the help of qualified and experienced legal counsel. 702 Defense has years of experience in the area of workers’ compensation and can be reached at 702-333-3673.