Workers’ Compensation for Undocumented Workers in Pennsylvania

February 22, 2024

While it is illegal to discriminate against workers based on their immigration status under the Immigration and Nationality Act, far too many undocumented workers remain unaware of their protections or are understandably afraid of asserting their rights. Unscrupulous employers can take advantage of this, so it is important for workers to be informed about the protections to which they are entitled. One area in which this can have a significant impact is that of workers’ compensation.  

In Pennsylvania, all workers, whether immigrants or U.S. citizens, can receive workers’ compensation. The Pennsylvania Workers’ Compensation Act does not differentiate between workers based on their immigration status. However, there are some important factors which should be considered, as well as potential hurdles which may be encountered when attempting to access benefits.  

Partial Disability Benefits

Non-citizens, regardless of their immigration status, are eligible for workers’ compensation in Pennsylvania. However, non-citizen workers should be aware that they are ineligible for wage loss benefits unless they are totally disabled. This means that if the insurance company can prove that you are not a citizen and that you are able to work in some capacity, you are not entitled to workers’ compensation benefits. If your doctor releases you to work in some capacity and the insurance company submits evidence that you are not a citizen, it becomes much more difficult to obtain or keep workers’ compensation benefits. The insurance company is not entitled to know whether you are a citizen. It is very important to have a lawyer by your side in these scenarios, as they become complex. 

Future Wage Loss Benefits

Again, while all employees in Pennsylvania, regardless of their immigration status, are protected under the Pennsylvania Workers’ Compensation Act, your employer’s insurance company has several creative arguments at their disposal if you are an undocumented or non-citizen employee. For instance, they may try to argue you are out of work due to your status, not your injury, to deny benefits. Additionally, if your work injury has caused permanent disability, the insurance company may attempt to claim that your loss of future wages is due to your immigration status preventing you from securing future employment, not your disabling work injury. It is important for you to consult an attorney, who will be able to anticipate and develop counterarguments to these and other tactics to deny you your benefits.   

Misclassification

The Pennsylvania Workers’ Compensation Act exempts some categories of workers from protection, including those not classified as “employees”, like independent contractors. However, some employers misclassify their employees as independent contractors to avoid providing certain protections like workers’ compensation, abide by minimum wage and overtime requirements, and pay certain taxes. Misclassification is a prevalent issue affecting nearly all sectors, and undocumented workers and those employed under-the-table are often impacted by misclassification.  

It is important to note your employer does not have the final say when it comes to whether you are an employee or an independent contractor for the purposes of a workers’ compensation claim. When evaluating how you should be characterized, a Workers’ Compensation Judge will consider the degree of control your employer maintains over your work, among other factors. If you have relatively little say over the work you do, including whether to accept or turn down jobs, it is more likely that you should be categorized as an employee. Conversely, if you make many of the decisions surrounding your work, it is more likely that you will be categorized as an independent contractor. If you suspect that you have been incorrectly categorized as an independent contractor, or if your employer is attempting to deny you workers’ compensation benefits on the basis that you are not an employee, contact an attorney to discuss whether you have been misclassified.  

Threats and Retaliation

While many workers fear repercussions for filing workers’ compensation claims, undocumented and immigrant workers are particularly vulnerable to retaliation. However, it is illegal for an employer to retaliate against an employee for filing a workers’ compensation claim.  If you think that your employer or an insurance company has retaliated against you because you have filed a workers’ compensation claim, or if you are threatened with any type of retaliation at any point in the process, including termination, immigration consequences, or threats to notify immigration authorities about your status or lack thereof, contact an attorney right away for guidance. 

Know your rights as an undocumented or immigrant worker.  Throughout the entire process, we’re here to help you.  Call Stern & Cohen at (215) 999-1443 or fill out a contact form below to get in contact with a Pennsylvania Workers’ Compensation Attorney.