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South Dakota Workers’ Compensation for Illegal Immigrants

Posted by Tamara

Many South Dakota companies have experienced an injured employee filing for worker’s compensation, and then discovering that the worker was an illegal immigrant.

Employers could be unaware that a worked was illegal, because often the employee presented convincing fake documents when hired. Then, during medical treatment or worker’s compensation proceedings the employee was discovered to be an illegal immigrant and not authorized to work in the U.S.

It is a crime for an employer, under the federal Immigration Reform and Control Act (IRCA), to knowingly hire someone who is not legally permitted to work in the United States. Companies, however, unintentionally violate the law when they hire a worker whose I-9 documents seem legitimate, and later learn the documents were forged. Since it is a crime to continue to employ undocumented workers, the worker is terminated.

Regardless of their illegal status, undocumented workers, including those employees who have been discovered and terminated, are still entitled to workers’ compensation benefits in many states.

State laws in New York, Texas, Utah and Florida specifically grant undocumented workers the right to collect workers’ comp when they are hurt on the job. Courts in Connecticut, Georgia, Nebraska, Oklahoma and New Jersey have ruled that an employee cannot be denied workers’ comp solely on the basis of being an illegal immigrant.

Arizona and Wyoming, on the other hand, ruled that a worker who is an illegal immigrant cannot enter into a contract for employment. Therefore, that worker is not an employee. Oklahoma, Connecticut, Texas and Louisiana heard the same argument, but did not accept it.

Arizona and Wyoming laws serve as a contrast to court rulings on FLSA (Fair Labor Standards Act) which have found that an undocumented worker is entitled to back wages for overtime, even if that worker should never been employed in the first place.





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