Being an undocumented worker is difficult and you may not know what your rights are as someone who is not a citizen. While your status makes you ineligible to legally work in the United States, you do have some of the same rights as an American citizen. Being informed can help you understand and pursue your rights as a worker in New York State.

What Is Workers’ Compensation?

Workers’ compensation is insurance that provides benefits for workers who suffer injuries or become ill as a direct result of their employment. Employers are required to pay for workers’ compensation insurance and should not require their employees, including undocumented immigrant workers, to pay the cost of compensation. When workers are injured or become ill because of on the job conditions, employers are required to pay compensation regardless of work status. The exception to coverage for worker compensation is those individuals who are hired as freelancers or independent contractors. Employers are not required to have worker’s compensation for those explicitly hired as freelancers or independent contractors.

How Compensation Works

Employers pay for compensation insurance to an insurance carrier. A workers’ compensation board, a state agency, processes worker claims for injuries and illnesses. The workers’ compensation board also will determine whether the insurer will reimburse workers for cash benefits and/or medical care as well as the amounts payable. Compensation is given to workers without regard to fault. The exceptions to no-fault compensation are those workers who are injured from being intoxicated on drugs or alcohol, or through deliberate intent to injure him or herself or someone else.

Claims are paid if the employer or insurance carrier agrees that injuries or illnesses are work-related. A workers’ compensation judge will intervene if there is a dispute over the compensation claims. If your injuries prevent you from returning to work, you may be entitled benefits making up two-thirds of the difference, or you may return to work with lighter or alternative duties.

Where Undocumented Immigrants Have Compensation Rights

Being an undocumented immigrant means that you are not only subject to federal law, but also to state law. State laws on providing compensation to undocumented immigrants vary. Some states permit compensation to undocumented immigrants and some states forbid such compensation. State and federal laws are constantly changing and it is important for all workers, citizen, documented, and undocumented to be aware of and understand current labor laws. New York is one of the states that currently allow undocumented workers to seek compensation from their employers if the workers are injured on the job.

Wingate, Russotti, Shapiro, Moses & Halperin, LLP can help you with your workers’ compensation needs. Please contact us at (212) 986-7353.