The Case of Undocumented Immigrants & Personal Injury

The issue of illegal immigrants in the United States has been a perennial problem, even more so in the past years. In 2014, the Department of Homeland Security reported 11.4 million undocumented immigrants. With regards to undocumented immigrants and personal injury cases, specifically in the collection of future lost wages, the main defense is the US Supreme Court decision, Hoffman v. NLRB.

The 2002 decision in the National Labor Relations Board (NLRB) versus Hoffman Plastic Compounds Inc. (NLRB 535 US 137) case states that undocumented immigrant Jose Castro, who was employed at Hoffman, “was not entitled to back pay because of his status.” Castro, along with several other employees, was fired after participating in a campaign by the union. Castro had used another person’s name to apply for the job by presenting the birth certificate of that friend.

The decision was 4-5 and the court interpreted the Immigration Reform and Control Act of 1986 (IRCA), which penalizes not just the undocumented worker but also the company that knowingly hires illegal immigrants.

Last year, Mezenos Maven Bakery v. NLRB (362 NLRB 41) fought for the reinstatement of the employees who were discharged because of lack of proper documentation. NLRB questioned the rights of the workers for conditional reinstatement, provided the workers could show authorization to work in the country. In this case, the Supreme Court affirmed that the workers were not entitled to back pay, but was willing to consider conditional reinstatement so long as the workers met the conditions of the reinstatement within a reasonable period.

Under the updated Procedures in Addressing Immigration Status Issues from ULP Proceedings, employees, included undocumented immigrants, are protected but not eligible for back wages or unconditional reinstatement. A memo to that effect was released on February 29, 2015, and is now being used by some insurance companies that find themselves with undocumented immigrants who have been involved in a personal injury case. The insurance companies refuse to pay for lost wages because of the premise that they are working in the country illegally and, therefore, are not eligible to be considered for personal injury cases (such as for injuries sustained in an accident).

However, the law on personal injury is different from the law on proper and legal work documentation. An employee, undocumented immigrant or not, who is injured can legally sue the negligent person (or his insurance company) for damages.  While the case is more complicated than the usual personal injury cases, the undocumented immigrant still has rights.

On the one hand, the first law is a federal labor law; on the other, the case is Tort law on negligence between two parties. In the case of Castro, there were no personal injuries sustained. He simply was fired for joining a union campaign an, as an illegal alien, was not eligible for back pay. In the second case, there was an accident, and injuries were sustained by the illegal immigrant.

If you are an illegal immigrant and you have been involved in an accident in which you have been injured through the negligent act of another person, you have the right to claim for personal injuries. You should seek out a law firm that can handle sensitive cases such as these.