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Employment Law: Can Illegal Alien Workers have the Right to Enforce State Law Regarding Worker Safety or other Employment laws?
As of 2004, the nation’s undocumented immigrant population increased to 10.3 million since 2000 in the United States. California and Texas account for 61 percent of the undocumented population where Arizona and North Carolina are two of the fastest growing states that often hire undocumented workers (Lopez, 2005). Hiring illegal alien workers has had an inherent tension between state workers’ compensation law and federal immigration law. Among other things, employment law provides the opportunity for wage replacement of disability due to workplace injury and if possible, promotes return-to-work in the worker’s former job (Annarino & Hayden, 2006).
It is also noted under the federal immigration law that undocumented or illegal aliens cannot lawfully work in the United States and employers cannot consciously employ them. However, insufficient enforcement of immigration laws had enabled the widespread hiring of undocumented workers in low-wage and labor-intensive sectors of the U.S. economy. An imposing question of this dilemma is whether illegal alien workers have the right to enforce state law regarding worker safety or other employment laws?
State legislatures have followed three general approaches in determining who is eligible for workers’ compensation benefits. Some states clearly say whether illegal aliens are covered or some expressly address the eligibility of aliens, but without mention to their legal status. Others set forth eligibility criteria without any mention of aliens or immigration status (Lee & Lloyd, 2007). Often, the question revolves around whether the illegal alien qualifies under the state statue as an “employee” working “in the service of” another under a “contract of hire”. For example, in Ohio its statute provides that an “employee” eligible to receive workers’ compensation...