North Carolina law provides important protections for injured workers regardless of immigration status. Under N.C. Gen. Stat. § 97-2(2), the definition of an “employee” expressly includes “aliens” who are “lawfully or unlawfully employed.” North Carolina appellate courts have also held that federal immigration law does not, by itself, prevent an undocumented worker from receiving workers’ compensation benefits.
If you were injured at work in North Carolina and you are undocumented, you may be afraid to report the injury or ask for workers’ compensation benefits. You may worry that your employer will fire you, report you to immigration authorities, or use your immigration status to deny your claim. Our North Carolina workers’ comp attorneys understand, and we’re on top of it.
The team at Ricci Law Firm Injury Lawyers would like to review some common concerns that undocumented workers have following on-the-job injuries. If you want to discuss your situation with a lawyer in a free and confidential consultation, contact our law firm today.
Key Takeaways:
- Undocumented workers can receive workers’ compensation benefits in North Carolina. This is stated in N.C. Gen. Stat. § 97-2(2).
- In Ruiz v. Belk Masonry Co., the North Carolina Court of Appeals held that federal laws that prohibit the employment of undocumented workers did not prevent undocumented workers in North Carolina from receiving workers’ comp benefits.
- In Gayton v. Gage Carolina Metals, Inc., the court recognized the earning capacity of undocumented workers based on the wages they earned prior to injury.
- In Roset-Eredia v. F.W. Dellinger, Inc., the court recognized the undocumented workers’ need for temporary total disability due to the injury sustained and limited English skills.
- Employers who threaten to report you to ICE because you applied for workers’ compensation may have engaged in retaliation. Workers can reach out to North Carolina’s Retaliatory Employment Discrimination Bureau (REDB) to find out if they have a retaliation complaint.
Do Undocumented Workers Have Rights to Workers’ Compensation in North Carolina?
Yes. In North Carolina, an undocumented worker can qualify for workers’ compensation benefits when the worker meets the requirements of the Workers’ Compensation Act.
The statute is unusually direct on this issue. As previously noted, N.C. Gen. Stat. § 97-2(2) defines an employee as a person working under an express or implied employment agreement, including aliens and people who are “lawfully or unlawfully employed.”
Ruiz v. Belk Masonry Co.
North Carolina courts have applied this language to undocumented workers.
In Ruiz v. Belk Masonry Co., the North Carolina Court of Appeals held that federal law prohibiting the employment of undocumented workers did not prevent those workers from being considered employees under the state’s Workers’ Compensation Act.
The court also held that federal immigration law did not, based solely on immigration status, prevent an undocumented worker from receiving workers’ compensation benefits.
Do Undocumented Workers Qualify for Permanent Disability or Medical Care?
Immigration status alone does not automatically prevent an undocumented worker from receiving workers’ compensation benefits. North Carolina courts have upheld benefits for undocumented workers, including medical and disability-related benefits when the requirements of the Workers’ Compensation Act are met.
The amount and type of benefits depend on the injury, medical evidence, wages, disability, and other facts. Wage-loss and vocational rehabilitation issues can require additional analysis when immigration status affects the worker’s ability to obtain employment.
Understanding Statutory Employee Protections Under N.C. Gen. Stat. § 97-2
N.C. Gen. Stat. § 97-2 is important because it establishes who qualifies as an “employee” under the Workers’ Compensation Act.
The statute does not limit the definition to U.S. citizens or workers with federal employment authorization. Instead, it specifically includes aliens and employees who are lawfully or unlawfully employed.
North Carolina case law reinforces this statutory protection.
What This Means for Undocumented Workers in North Carolina
This means an employer generally cannot reject a legitimate workers’ compensation claim simply by saying:
- “You do not have legal immigration status.”
- “You used a false Social Security number.”
- “You cannot legally work in the United States.”
- “You should not have been hired.”
Those issues can create separate legal concerns, but they do not automatically eliminate an injured worker’s status as an employee for purposes of North Carolina workers’ compensation.
There are still eligibility requirements. For example, the injury generally must arise out of and occur in the course of employment. The employer must also be subject to the Workers’ Compensation Act.
Types of Workers’ Comp Benefits Available to Injured Undocumented Employees
An approved workers’ compensation claim may provide several forms of benefits. The specific benefits available depend on the injury, medical evidence, disability, wages, and other facts of the claim.
Potential benefits can include:
- Medical Treatment: Workers’ compensation can cover reasonable medical treatment related to a compensable work injury.
- Temporary Disability Benefits: If the injury prevents you from working, you may qualify for wage-loss compensation under the Workers’ Compensation Act.
- Partial Disability Benefits: A worker who returns to work but earns less because of the injury may have a claim for partial disability benefits.
- Permanent Disability Benefits: A permanent impairment may qualify for compensation depending on the affected body part, medical rating, and applicable law.
- Death Benefits: When a compensable workplace injury results in death, eligible dependents may have a claim for workers’ compensation death benefits.
- Necessary Medical Services: Depending on the injury and circumstances, workers’ compensation can cover treatment and related services necessary because of the workplace injury.
Immigration status does not automatically eliminate these benefits. However, wage-loss and return-to-work issues can become more complicated when an undocumented worker cannot legally obtain another job.
Can My Employer Report Me to ICE or Fire me for Filing a Workers’ Compensation Claim?
A threat involving ICE can be particularly intimidating. However, an employer’s statement about contacting immigration authorities does not change whether an otherwise compensable workplace injury qualifies for workers’ compensation.
Filing a workers’ compensation claim is protected activity under North Carolina’s Retaliatory Employment Discrimination Bureau (REDB). The Retaliatory Employment Discrimination Act (REDA) prohibits an employer from taking retaliatory action because an employee files or threatens to file a workers’ comp claim.
Whether an employer’s conduct violates the law depends on the specific facts. If your employer threatens you with immigration consequences, terminates you, cuts your hours, or takes another adverse action after you report an injury or file a claim, document what happened and speak with an attorney.
The REDB provides resources to determine if you have a REDA complaint.
Common Employer Tactics, False Claims, and Retaliation Threats
An injured undocumented worker may hear statements from an employer that are intended to discourage a workers’ compensation claim. Examples may include:
- “You cannot get workers’ compensation because you are undocumented.”
- “If you file a claim, immigration will find out.”
- “You will lose your job if you report the accident.”
- “You were paid cash, so you were not an employee.”
- “You signed something saying you were an independent contractor.”
- “You cannot prove how much you earned.”
- “Your injury happened outside of work.”
These statements should not automatically be accepted as the final word on your claim.
Misclassification of Undocumented Workers as Independent Contactors
Misclassification can also be an issue. Calling someone an “independent contractor” does not by itself determine whether the person is legally an employee for workers’ compensation purposes.
For example, cash payment or the absence of traditional pay stubs does not automatically mean you are a contractor and are excluded from workers’ compensation. North Carolina law recognizes employment under oral or written, express or implied agreements.
Evidence such as work schedules, text messages, bank records, time sheets, photographs, and coworker testimony may help establish your employment and earnings.
Employer Retaliation Against Undocumented Workers
Retaliation is another concern. North Carolina’s REDA prohibits retaliation against an employee for filing a claim or taking action concerning the state’s Workers’ Compensation Act.
If an employer fires, demotes, threatens, or otherwise retaliates against you because you exercised your workers’ compensation rights, tell your attorney exactly what happened. Keep text messages, emails, written warnings, termination notices, and other communications.
How Immigration Status Affects Vocational Rehabilitation and Wage-Loss Benefits
Immigration status can become more complicated when the question changes from whether you qualify for workers’ compensation to whether you are able to return to work.
North Carolina courts have addressed this issue directly. Because these issues can depend heavily on the facts, an injured undocumented worker should avoid assuming that benefits will end simply because the worker cannot legally accept a new job.
Gayton v. Gage Carolina Metals, Inc.
In Gayton v. Gage Carolina Metals, Inc., the employer argued that an undocumented worker’s immigration status prevented the worker from participating in vocational rehabilitation and justified ending disability benefits.
The North Carolina Court of Appeals rejected the employer’s position in that case. The court recognized that an undocumented worker can have an earning capacity based on pre-injury wages. The employer still has to address whether suitable work is actually available and whether the employee is capable of obtaining it, considering the worker’s physical and vocational limitations.
Roset-Eredia v. F.W. Dellinger, Inc.
A later case, Roset-Eredia v. F.W. Dellinger, Inc., also involved an undocumented worker and vocational rehabilitation. The North Carolina Court of Appeals upheld a finding of temporary total disability where the evidence supported the conclusion that the worker could not obtain suitable employment because of the combined circumstances involved in the case, including his injury and limited English skills.
The practical point is that immigration status can affect how wage-loss and return-to-work issues are analyzed, but it does not automatically erase a worker’s right to disability benefits.
Steps to Take Immediately After an On-the-Job Injury as an Undocumented Worker
If you are injured at work, taking the right steps early can help protect your claim.
1. Report the Injury
Tell your supervisor, manager, employer, or another responsible person as soon as possible.
North Carolina’s Industrial Commission recommends reporting a work-related injury promptly and providing written notice to the employer as soon as practical and within 30 days.
2. Get Medical Treatment
Seek appropriate medical care. Tell the medical provider that the injury happened at work and identify your employer.
Do not hide the connection between your injury and your job because you are concerned about immigration status.
3. Explain Exactly What Happened
Write down:
- The date and time of the accident
- Where the accident occurred
- What task you were performing
- How the injury happened
- What body parts were injured
- Names of witnesses
- Who you reported the injury to
- Any treatment you received
4. Keep Evidence of Your Employment and Wages
This can be especially useful if you were paid in cash or did not receive conventional pay stubs. Save:
- Text messages with your employer
- Work schedules
- Pay records
- Bank deposits
- Cash-payment records
- Time sheets
- Photos from the job
- Employment-related emails
- Tax documents
- Names of coworkers who can confirm your employment
Do not create or alter documents. Preserve whatever records already exist.
5. Do Not Ignore Forms or Deadlines
The Industrial Commission uses Form 18 for an employee to provide notice of an accident and claim workers’ compensation benefits.
North Carolina law also places deadlines on workers’ compensation claims. Generally, the right to compensation is barred if the required claim or payment is not made within the statutory period, subject to exceptions.
6. Talk to an Attorney Before Accepting an Employer’s Explanation
If your employer tells you that you have no rights because you are undocumented, do not assume that statement is correct. A workers’ compensation attorney can review the facts and explain what options may be available.
Why Legal Representation Matters for Undocumented Workers in NC
A workers’ compensation claim can involve medical treatment, wage calculations, disability benefits, insurance disputes, return-to-work issues, and deadlines. An undocumented worker may also have an additional concern: fear that discussing immigration status will cause problems outside the workers’ compensation case.
North Carolina law provides meaningful protection, but the details of an individual claim still matter.
An attorney can help:
- Determine whether your injury is likely covered by workers’ compensation
- Identify the appropriate employer and insurance carrier
- Document your employment and wages
- Address a disputed or denied claim
- Request appropriate medical treatment
- Evaluate temporary or permanent disability benefits
- Respond to return-to-work and vocational rehabilitation issues
- Document potential retaliation
- Explain how immigration status may affect specific issues in the claim
Contact Our Firm for a Free and Private Consultation About Your Work Injury
If you were injured while working in North Carolina, you do not have to decide whether you have a claim based solely on your immigration status. Ricci Law Firm Injury Lawyers is here to help. For a free and confidential consultation, contact our North Carolina law firm today.