Can Undocumented Workers Receive Workers’ Compensation in New York?


In New York, workers injured on the job are entitled to workers’ compensation benefits regardless of their immigration status.

This means undocumented workers have the right to recover benefits for medical treatment and a percentage of their lost income by filing a claim with their employer’s workers’ compensation carrier. Similarly, surviving family members of undocumented workers killed in fatal workplace accidents are entitled to workers’ compensation death benefits.

To recover workers’ compensation benefits, the following must apply:

  • Your injury or illness is work-related.
  • Your employer carries workers’ compensation insurance (NY law requires most employers to carry workers’ comp insurance).
  • You meet applicable deadlines for reporting your injury and filing a claim.

Though workers must meet the requirements above in order to file a claim, they DO NOT have to prove their immigration status. If you are an undocumented worker who has been hurt on the job, your immigration status will not be a factor in your eligibility for workers’ compensation.

Injured on the Job? You Have a Right to Seek Workers’ Comp.

New York workers’ compensation statutes allow undocumented workers to recover the same amount of benefits as legal residents despite the fact that the federal Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an undocumented individual to work in the United States.

The IRCA requires employers to only hire persons who may legally work in the U.S. However, in Balbuena v. IDR Realty, LLC (6 NY3d 338, 363), the Court of Appeals of New York ruled that:

“an injured employee’s status as an undocumented alien does not preclude recovery of lost wages in a personal injury action.”

This means the IRCA doesn’t automatically pre-empt the NY Workers’ Compensation Board practice of ignoring immigration status when determining workers’ compensation eligibility.

While undocumented workers are encouraged to file workers’ comp claims after being hurt at work, many fear that if they do seek benefits, they’ll be terminated or retaliated against by their employer.

While there are indeed employers who mistreat their workforce, there are also laws that protect workers and require employers to comply with the law. Because benefits can help workers pay for medical treatment and make ends meet while they recover, it’s important to understand that:

  1. It is your right to receive workers’ compensation after suffering a work-related injury or illness, even if you are undocumented.
  2. Our laws prevent employer retaliation against workers who exercise their right to file workers’ compensation claims.
  3. An experienced attorney can help you navigate the process of recovering benefits while protecting your rights every step of the way.

In cases involving fatal workplace accidents, Section 17 of the Workers’ Compensation Law clarifies that the workers’ compensation death benefits will also be “the same in amount as provided for residents.”

However, if the dependents live in a foreign country, only the surviving spouse and children of the deceased worker will receive compensation. If there is no surviving spouse or children, the compensation will go to “the surviving father or mother whom the employee has supported, either wholly or in part, for the period of one year prior to the date of the accident.”

What About Personal Injury Claims?

In some cases, injured workers may be able to bring civil personal injury lawsuits outside of the workers’ compensation. These claims can help Plaintiffs recover damages not available through workers’ comp, such as pain and suffering, and are typically brought against negligent third parties such as manufacturers of a defective product, premises owners that failed to address dangerous work site conditions, or general contractors who violate the New York Labor Law.

While your ability to bring a civil injury claim will depend on the facts of your case, it will not be hinged on your immigration status. Undocumented workers have the right to bring personal injury lawsuits in New York just as they have the right to bring workers’ comp claims.

At The Perecman Firm, P.L.L.C., we handle both workers’ compensation and personal injury cases and can represent you in both matters should you have a viable case.

Call for a FREE Consultation: (212) 577-9325

The Perecman Firm, P.L.L.C., has been fighting for injured workers and their families since 1983. In that time, we’ve recovered over half a billion in compensation for clients from all walks of life, including undocumented construction workers. We’re passionate about helping good people through tough times and have earned a reputation as caring advocates who go the extra mile.

To speak with a lawyer about your potential case, contact us for a FREE case review.

For over 40 years, David H. Perecman has distinguished himself as one of the leading personal injury lawyers in New York City, championing all types of personal injury cases including construction accidents, premises accidents, automobile accidents, and medical malpractice, along with employment discrimination, false arrest, and civil rights cases.