Hiring Undocumented Workers: What Employers Really Need to Know

By Aaron Friedman

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Some employers are choosing to hire undocumented workers to skirt the law. Others are doing it because it’s the only way, economically, to survive. Still others are ignorant of the status of the worker through poor HR vetting procedures. Regardless of the reasons for hiring undocumented workers, it’s often a huge mistake and can lead to expensive legal problems later on - especially when it comes to workers’ compensation. Here’s why.

Workers’ Compensation is Not Necessarily Based On Legal Status

Workers’ compensation payments aren’t always dependent on the legal status of the worker. In some instances, you may be on the hook for an employee who is undocumented. Denying claims for undocumented workers might land you in court facing an expensive legal battle.

That’s happened to more than one company. For example, when David Cruz sued Kennett Square Specialties over a workers’ comp denial, the company thought its position was solid because it suspected that Cruz was an undocumented worker.

Not being a legal U.S. citizen, it didn’t have to pay for claims, right? Not so fast. The judge in the case ended up ruling that the company could not simply deny benefit claims just because the company thought that the worker was undocumented.

In this case, the company could not prove that the defendant wasn’t a U.S. citizen and the judge’s determination made it clear that an employee only had to prove that he was injured on the job and that the injury resulted in a loss of earning power.

Cruz had successfully done that, and so was awarded the judgment.

Injured Employees May Be Able To Collect Workers’ Comp Claims Even If They Are Undocumented

In the case of David Cruz, the judge looked beyond the question of citizenship. Law firms, like Disability Law Advocates Group, P.C., are familiar with these types of cases. Employers believe they are safe because they cast doubt on the legal status of the employee or use plausible deniability to question the citizenship status of the employee.

But, a case like Cruz’s sets a precedent that businesses can’t rely on assumptions. They must provide facts. Even then, the judge’s ruling made it clear that citizenship wasn’t necessarily a disqualifying factor. Cruz was also helped by the fact that he pled the 5th, and therefore was not obligated to incriminate himself. This is interesting because doing so is a presumption, by the court, that he is a U.S. citizen with a right against self-incrimination.

Your Company Could Be Liable

Some companies try to disavow knowledge of the employee’s legal status, but this is not a solid defense. When employees are hired, you must verify their legal status using Form I-9. But, you cannot discriminate against a potential employee by demanding certain documents like a green card. At the same time, you are supposed to be able to rely on the documents that get filed with the I-9 as long as you have a reasonable cause to believe that they are genuine.

Confused? You’re not alone. Most employers don’t know where to draw the line. To protect yourself, you really need a lawyer and a systematic hiring process that balances digging too deeply into an employee’s past with not digging deep enough. It’s a tightrope walk but one that the courts and the law make clear that you must do.

Aaron Friedman, Esq., is a father of two and a lawyer of over 25 years. His devotion to workers' compensation victims is apparent in every article he writes. Look for his posts mainly on law, legal and worker's websites and blogs. 

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