New York state has one of the largest undocumented immigrant populations in the nation, coming in fourth behind Texas, California, and Florida. According to the most recent study taken by Pew Research Center in 2016, 725,000 unauthorized immigrants lived in New York state. Although it is illegal for employers to hire immigrant workers who are not documented and authorized to work in the United States, whether it is intentional or not, employers continue to hire undocumented immigrant workers every day.
When undocumented workers are injured while working, many are often afraid to report their injuries out of fear that their immigration status will become known or reported. In cases where undocumented workers do report their injuries, employers often argue that because undocumented workers are not legally authorized to work in the U.S., they are not employees and thus ineligible to receive workers’ compensation.
The question that comes into play is which government entity governs these issues? Workers’ compensation laws are governed by the states, while immigration law is exclusively regulated on the federal level. In determining whether state law is preempted by federal law pursuant to the Supremacy Clause, the court must determine congressional intent, which may be discerned in three ways:
- Expressly in the language of the federal statute
- Implicitly, when the federal legislation is so comprehensive in scope that it is inferable that Congress intended to fully occupy the field of its subject matter
- Implicitly, when state law actually conflicts with federal law. U.S.C.A. Const. Art. 6, cl. 2.
In Amoah v. Mallah Management, LLC, the Third Department held that under the doctrine of conflict preemption, state workers’ compensation law did not conflict with the National Immigration Reform and Control Act (IRCA), and thus, IRCA did not preempt state workers’ compensation law. Amoah v. Mallah Management, LLC, 57 A.D.3d 29 (3d Dept. 2008). This ruling placed more pressure on the individual states to enact legislation to address the rising immigration concerns of the last decade.
In the New York State Workers’ Compensation Law, immigration is only addressed once. New York Workers’ Compensation Law Section 17 states that workers’ compensation laws in relation to aliens that are not residents or are about to become non-residents are the same as provided for legal residents. In the U.S., the term “alien” means any person who is not a citizen or national of the U.S. However, Section 17 does not address treatment of undocumented immigrants.
Many states have statutes that extend labor rights to undocumented workers, including the right to claim workers’ compensation benefits. These states have previously included Arizona, California, Colorado, Hawaii, North Carolina, Tennessee, and Texas. Until recently, New York was not included on this list.
However, the New York State Legislature recently approved changes to New York Labor Law Section 215(1)(a) addressing prohibited retaliation in employment, also extending to other sectors, including vehicle and traffic laws to provide additional protections for employees or their family members regarding their citizenship or immigration status. This legislation will expand the law to make it illegal “to threaten, penalize, or in any other manner discriminate or retaliate against any employee [or] threatening to contact or contacting U.S. immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status [ . . . ] to a federal, state, or local agency.” This change in labor and employment law will surely translate to workers’ compensation law as well.
In light of the current political climate, the rapid changes to immigration law, and the ever-changing laws regulating workers’ compensation, we are likely going to continue to see a shift in how New York handles workers’ compensation claims submitted by undocumented immigrants and illegal aliens.