Do Injured Undocumented Workers Have Rights?

Do Injured Undocumented Workers Have Rights?

Undocumented workers in New York City occupy some of the most dangerous jobs in the country. These jobs often require massive construction and manufacturing equipment with harmful components, braving fast-paced city streets as delivery personnel, enduring extreme temperatures from outdoor work, or working extended and nighttime hours to make ends meet.


Like most workers in these trades, the risk of occupational injuries is higher than others, simply due to the nature of the work. Unfortunately, what sets undocumented workers apart is the additional risk factors they face due to their immigration status. These risk factors are typically a result of unlawful and negligent practices, unfairly putting undocumented workers in danger and causing them to fall victim to preventable workplace accidents.


Undocumented workers have the same right as American employees to a safe workplace and compensation to cover damages when occupational accidents occur. Sadly, many undocumented workers are unaware of their right to seek representation for their injuries or too frightened to report concerns that could save their lives.


What High-Risk Industries Employ Undocumented Workers?


The Occupational Safety and Health Administration (O.S.H.A.) reports that 12 workers die on average every day nationwide, while another 50,000 die annually from occupational disease. An estimated 8 to 12 million occupational injuries occur across all industries. Among these devastating numbers, most of the workers are immigrants and undocumented workers.


Work industries with the highest concentrations of undocumented workers consequently also have elevated rates of injuries and fatalities to start. They include:


– Construction;

– Manufacturing;

– Bricklaying;

– Carpentry;

– Ironwork;

– Demolition;

– Delivery drivers; and

– Industrial bakeries.


Workers in these industries are expected to operate heavy and dangerous machinery, work from elevated heights, close vicinity or directly in NYC traffic, and outdoors in extreme temperatures and/or warehouses without heat and air conditioning units. These trades commonly require long and nighttime shifts, which increases worker fatigue and the risk of employee error. Workplace injuries are often due to fall hazardsvehicle accidents, electrocutions, caught-in or between, and struck-by incidents.


Why Do Undocumented Workers Have Higher Injury Rates?


Despite performing the same work as American workers, injury rates for undocumented workers are far higher. Often, these injuries are 100 percent preventable and a result of employer negligence. Here are a few of the reasons we have seen why undocumented workers are getting injured on the job.


Dangerous Assignments

Undocumented workers are often assigned work tasks that are more dangerous than their American coworkers. Negligent employers who do not want to risk paying workers’ compensation (even though they are legally required to) believe that if they assign the high-risk tasks to undocumented workers, they will not be liable for injuries that result. Undocumented workers are no often part of a union and therefore less likely than other union workers to report safety concerns with O.S.H.A., even if their lives are at risk. Negligent employers count on this to get away assigning tasks that would not be unlawful to demand from a union worker.


Guilt and Fear

Undocumented workers are more willing to agree to take on unsafe or illegal tasks under the belief that they ‘have to.’ There is a fear among undocumented workers that if they turn down a task, they could lose their job or that their employer will try to deport them. Some negligent employers will go as far as to threaten deportation just to finish a project on time. Sadly, most of these negligent practices go under the radar until a fatality or catastrophe brings them to light.


Lack of Training

While some employers neglect to train undocumented immigrants due to rushed hiring, others provide inadequate training in languages workers cannot understand. Not understanding how to stay safe on the job or perform your tasks correctly significantly elevates a worker’s risk for injuries.


Working While Injured

Undocumented workers who are injured but still able to work are unlikely to seek medical attention. Some employers will tell undocumented workers that they do not qualify for workers’ compensation benefits when they do. The fear of having to pay for expensive medical bills out-of-pocket is substantial. Because of this, undocumented workers are much more likely to work through injuries and put themselves at risk for even more severe or fatal injuries in the future.


Pandemic-Related Risk Factors

Since the pandemic shutdown of worksites across NYC in 2020, thousands of workers have been working overtime to make up for lost income during these periods. Undocumented workers are more willing to take and keep unsafe jobs when they feel there are no other options. They are also more likely to work long, overnight shifts to secure extra income for their families. Additionally, undocumented workers who contract COVID-19 may be less likely to report illnesses out of fear of losing their jobs or income due to self-quarantine protocols.


Unknown Rights

One of the most prevalent reasons why so many undocumented workers have higher rates of workplace injuries is that they are unaware they have the right to fight back. Workers unaware of their rights are less likely to speak up when they experience something unsafe or illegal, thinking they have no power to ask for change. Undocumented workers have the same rights as all other American workers to a safe and healthy workplace. When injuries result from negligence, they can seek representation, compensation, and retribution from their employers.


What Laws Protect Undocumented Workers?


The laws that protect undocumented workers are the same for all American workers in New York State. Immigration status does not imply whether a worker can file a claim or a lawsuit against an employer for negligent practices. Employers who say or make threats to the contrary are breaking the law.


These are the laws all undocumented workers should be aware of and how they can protect their rights after a work accident:


New York State Labor Law

The New York State Labor Laws protect all employees from foreseeable harm, requiring companies to provide a safe and healthy workplace. Workers injured on the job have the right to consult with an attorney to determine if the accident was due to negligence and to receive compensation for damages sustained. Labor laws that are important to know, especially when working in construction, include:


  • Labor Law 240: This law, also known as the Scaffolding Law, protects workers who sustain a workplace injury due to falls or struck-by objects. Employers are legally required to provide scaffolding and safe structures for workers on job sites and take reasonable steps to prevent accidents.
  • Labor Law 241: This law protected workers injured due to projects involving safety equipment, excavation, and demolition. The law requires employers to provide a safe surface for these projects and apparatuses (hoists, elevators, safety guards) to reduce the risk of injuries to employees.


Fair Labor Standards Act (FLSA)

The FLSA protects all workers from wage gauging and unfair pay. The law sets a federal minimum wage of $7.25 per hour and $2.13 per hour for workers who earn tips of more than $30 a month. NYC’s minimum wage is currently $11 per hour or $10.50 per hour for employers with ten or fewer employees. All hourly employees are entitled to overtime wages for working more than 40 hours per week, calculated at 1.5 times their rate.


New York State Workers’ Compensation Law

New York State requires most employers to carry workers’ compensation insurance to support workers injured on the job. Workers’ compensation assists with wage replacement, medical treatment, benefits, and rehabilitation. In cases where workers are eligible for the Family and Medical Leave Act, an employer will also be liable to hold your position for you until you recover.


Balbuena vs. IDR Reality

In Balbuena vs. IDR Reality, the New York Court of Appeals ruled that state labor laws apply to non-citizens, including undocumented immigrants. Workers who knowingly hire undocumented workers agree to follow all NYS labor laws and pay all required benefits such as workers’ compensation and fair wages, including future financial losses from serious or permanent injuries.


Workplace Injury Lawyers for Undocumented Workers

When undocumented workers are injured on the job due to preventable measures, time is of the essence. Negligent employers will do whatever it takes to try and get out of supporting undocumented workers; this includes making threats to deport individuals and families to persuade workers to drop a claim.


If you or a loved one is an undocumented worker who has been injured in a workplace accident, you need to work with a workplace accident attorney who is familiar with these types of accidents. Undocumented worker injuries require a team of professionals who can investigate your case quickly and thoroughly, identifying all damages you are eligible for to help you in your recovery.


New York City and Long Island Workplace Accident Lawyers

Our personal injury attorneys at the law firm of Siler & Ingber have over 20 years of experience serving injured workers across New York City and Long Island. We protect your rights by maximizing recovery and securing the financial support our clients need to succeed on their road to recovery. Our winning attorneys know how to navigate through the claim process using our experience as insurance defense attorneys. We are not afraid to fight and are fully prepared to take your case to trial to get a justified verdict over settling for less.


If you or a loved one has been injured in a work-related accident, our team at Siler & Ingber is here to help. With a 98% success rate, we have the experience and the know-how to help our clients achieve a favorable outcome. Contact us today at 1-877-529-4343, or schedule an appointment online anytime. We never charge a fee unless we recover money for you.


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