Does immigration fraud affect an employee’s right to workers’ compensation income benefits?

By Lindy Z. Kerr

In Bollinger Shipyards, Inc. v. Director, OWCP (Rodriguez), 604 F.3d 864 (5th Cir), the 5th Circuit in Louisiana saw the intersection of federal workers’ compensation law under the Longshore Harbor Workers’ Compensation Act (LHWCA) and issues that commonly arise when undocumented workers are disabled as the result of a work injury.

The court held that an undocumented worker injured in the United States was entitled to Federal Workers’ Compensation benefits under the Longshore Harbor Workers’ Compensation Act (LHWCA). The decision is consistent with the position Georgia and other states have taken in state workers’ compensation claims.

In the case, employee Rodriguez falsely told his employer he was a U.S. citizen at the time of hire and provided a false Social Security number. Bollinger Shipyards uncovered the fraud after the employee was injured. In the workers’ compensation claim, the company argued Rodriguez was precluded from workers’ compensation benefits because of his immigration status and fraud. The Court disagreed, reasoning that the plain language definition of “employee” in the LHWCA does not preclude undocumented workers. The Court also rejected the argument that payment of income benefits would be at odds with the holding in the United State Supreme Court case of Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002). In Hoffman, the Supreme Court held the National Labor Relations Board could not award back pay to an undocumented alien who had never been legally authorized to work in the United States as such relief was contrary to federal immigration policy in the Immigration Reform and Control Act of 1986 (IRCA).

Georgia has taken a position similar to the federal court in Rodriguez. As set forth in several appellate decisions following Hoffman Georgia has rejected the argument that an undocumented worker does not meet the definition of “employee” under the Act. Georgia courts have also struck down the argument that paying income benefits to an undocumented worker is at odds with federal immigration policy as set forth in IRCA. In fact, Georgia has held that excusing employers from paying workers’ compensation benefits would reward employers for hiring illegal workers. See Earth First Grading v. Gutierrez, 270 Ga.App. 328, 606 S.E.2d 332 (2004); Continental Pet Technologies, Inc. v. Palacias, 269 Ga. App. 561, 604 S.E.2d 627 (2004). But see Martines v. Worley & Sons Const., 278 Ga. App. 26 (2006)(where light duty work is offered contingent on the claimant bringing documents which prove he can work legally his failure to produce such documents may justify a suspension of weekly benefits).

For questions about Longshore matters contact Lindy Kerr at (404) 446-4486. For questions regarding undocumented workers please contact David Willis at (404) 446-4491.

If you have questions or comments, please reply to this post or contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this newsletter should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or david.willis@davidandrosetti.com.