Amy Oran, Kelley Kronenberg Fort Lauderdale

With all of the discussion in today’s political sector regarding walls on our borders, it's common within Florida to encounter employees not eligible for work in the United States.

When undocumented workers get hurt on the job, their illegal status doesn't make them ineligible for workers’ compensation benefits, but, it may limit the benefits to which they are entitled.

The Florida Legislature has included protection for undocumented individuals as injuries sustained on the job must be covered.

The 1^st DCA expressed, “This holding prevents unauthorized aliens from suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage loss benefits.” Cenvill Development v. Candelo, 478 So.2d 1168 (Fla. 1^st DCA 1985). Rights to medical care are the same for any employee in that should the claimant move, a doctor needs to be provided within a reasonable distance of that person’s home, even if that means providing care outside of the country, see AMS Staff Leasing v. Arreola, 976 So.2d 612 (Fla. 1^st DCA 2008).

The rights of undocumented workers do have limitations, however. If the employee is placed on a light duty status, the company cannot legally accommodate as it may not knowingly offer a position to an undocumented employee. This means the worker may not be eligible for lost wage benefits if it is his status, not the injury, that prevents a return to the job, see Cenvill. This is also true for employees seeking permanent total disability benefits.

The Judge of compensation claims may consider the eligibility to work as a factor in determining whether the industrial accident rendered the employee permanently and totally disabled, see HDV Construction Systems v. Aragon, 66 So.3d 331 (Fla. 1^st DCA 2011).

Misrepresentation can have an impact in the entitlement to benefits if the false information was knowingly provided to obtain workers' compensation benefits. One who provides a false Social Security number or work visa to obtain employment, who is then injured, has not necessarily committed fraud under Section 440.105, Florida Statutes. The misrepresentation has to be made to obtain benefits, with such examples including providing false Social Security numbers to claims adjusters or treating physicians. Providing false documentation during the hiring process may be a crime itself however, it does not automatically constitute misrepresentation under workers' compensation, see Arreola v. Administrative Concepts, 17 So.3d 792 (Fla. 1^st DCA 2009); State v. Brock, 138 So.3d 1060 (Fla. 4^th DCA 2014).

Oftentimes, undocumented workers are paid in cash to avoid payroll records, which are needed to determine the average weekly wage, (AWW,) and calculate any lost wage benefits to which the employee is entitled. Section 440.02(28), Florida Statutes defines that which constitutes “wages;” and the holding of the First DCA in Fast Tract Framing, v. Caraballo, made it clear only that which is reported to the IRS is counted. Under this ruling, even one not legally eligible to work can find a way to report his or her earnings. These do not need to be reported in a formal tax return, as the employee can simply report the wages, which then qualify as wages, even if reported to the IRS after sustaining the injury. Simple unrefuted testimony of having conveyed earnings sufficed to have the AWW established based upon cash payments in Garcia-Lopez v. Affordable Plumbing, 66 So.3d 1024 (Fla. 1^st DCA 2011).

In the tragic circumstance of a fatal accident, or sustaining injuries that lead to death within the statutory timeframe, dependents hold the same right to death benefits as a citizen. This was not always the case. In the early 1980s the legislature placed a lower cap on death benefits for the financial dependents of an undocumented decedent. This was later deemed unconstitutional by the Florida Supreme Court under the equal protection clause and the access to courts right under the Constitution of the state of Florida, see DeAyala v. Florida Farm Bureau Casualty Insurance, 543 So.2d 204 (Fla. 1989).

No matter how distressed company executives may become as a workers’ compensation case develops and payments are issued, injured workers are protected from being reported to federal immigration agencies. Although there is no specific statute granting the protection, the policy is seen applied readily through case law. Reporting or even threatening to report an injured worker in an effort to have them deported based upon their illegal status is seen as attempting to prevent them from receiving benefits or retaliating against the employee for filing a claim. Both constitute illegal acts. If an employer does attempt to file a report to U.S. Immigration and Customs Enforcement, that company is likely to become the defendant party in a retaliation claim, and they put themselves in a position to only hurt their business.

These protections prove coverage is not influenced by politics; however, recently there have been political figures speaking about the issue of immigration. Sebastian Sanchez, an attorney with the Employment Rights Project at Bet Tzedek, which provides legal services for low-income individuals, observed that some employers "feel there is official support that these workers don't deserve any protection and don't deserve any rights." A memorandum of understanding between ICE and the U.S. Labor Department disavows the practice "motivated by an improper desire to manipulate a pending labor dispute, retaliate against employees for exercising labor rights, or otherwise frustrate the enforcement of labor laws." The rights are protected as discussed above, regardless of how much one may personally disagree with the privileges afforded undocumented workers in Florida.

California Labor Commissioner, Julie Su, perhaps said it best: "In order for our democracy to function, the people, the residents of our state have to feel safe … to report a violation and seek the help of government." Although the comment came from a California official, the same applies to Florida. We cannot allow politics and personal beliefs to hinder the administration of benefits to which an injured worker is entitled. While this issue could be avoided in its entirety by ensuring all new hires have the proper papers, that is not realistic in our state. If one chooses to employ an undocumented worker, it is their duty to protect them as well.

Amy Siegel Oran is a partner at Kelley Kronenberg, concentrating her practice exclusively on workers' compensation defense. She can be reached at aoran@kklaw.com