Workers who have sustained a job injury, and who will never recover completely or will continue to be limited in the work they can do, may have a permanent disability. This means that they may be eligible for PD (permanent disability) benefits, which is determined on the basis of a stringent medical chart review. Undocumented workers in America are among the most vulnerable workforce, and many of them do not receive the compensation due to them just because they don’t have a documented status.The Pew Research Center estimates that around 8 million undocumented immigrants were either working or looking for work in the United States in 2014. This group comprised about 5% of the U.S. workforce in 2014.
In an unpublished decision recently, the Tennessee Supreme Court ruled that a law limiting the maximum permanent partial disability benefits an injured undocumented worker can receive is unconstitutional.This ruling was made with regard to the case of an undocumented worker who was operating a lawn mower on a hillside. During the job, he slipped on the wet grass and fell. Since he lost control of the mower, it ran over his left arm, causing severe injuries. The employer did not call him back for work after the incident because he was an undocumented worker. The worker filed for workers’ compensation benefits, challenging the constitutionality of a law limiting his compensation to one and one-half times the medical impairment rating. The Tennessee court ruled that the provision was unconstitutional.
Let us look at the existing law in Tennessee.
- The law limits the permanent partial disability benefits of a worker who is not legally allowed to return to work because of federal immigration law to a cap of one and one-half times the medical impairment rating.
- The court pointed out that other workers who do not come within this exception are entitled to a multiplier of up to six times. The provision was pre-empted by federal immigration law, and the legislature intended for an additional sum to be paid by employers as a penalty.
- The court clarified that the provision was pre-empted by federal law because the legislature intended and attempted to establish what amounted to a state immigration policy.
- Further, as the court elaborated, by reducing the liability of employers of undocumented workers to one and one-half times the medical impairment rating, the law made it less expensive to hire such workers. It potentially encouraged employers to hire undocumented workers, typically in high-risk jobs that very often resulted in workers’ compensation claims.
In this particular case, the court found that the worker sustained an 84% permanent partial injury to his left arm due to the work injury.
Undocumented workers figure prominently in the agricultural (17%) and construction (13%) industries, according to Pew research. In 2014, the state with the highest proportion of undocumented workers (10%) was Nevada, with such employees recruited in the leisure/hospitality and construction industries. Nevada is followed by California (9%) and Texas (8.5%). These workers are considered among the most vulnerable and exploited workers in the U.S – they are the frequent victims of uncompensated workplace injuries, unpaid wages, dangerous work conditions, discrimination and other labor law violations. Unfortunately, the workers who try to remedy the abuse face physical as well as immigration-related threats and retaliation. Undocumented workers who represent a significant percentage of the workforce in the service, construction, manufacturing, restaurant and agricultural sectors need to be informed that all workers – whether documented or undocumented – are protected under the most basic federal and state employment and labor laws.