Learn about your rights as as undocumented immigrant worker if you get hurt on the job in Atlanta
Immigration is a very controversial topic in American politics these days. Everywhere you turn, there appears to be a discussion or argument regarding what should be done regarding immigration in the United States.
Specifically, the issue revolves around individuals who arrive in the U.S. without proper documentation (sometimes referred to as “illegal immigrants” or “illegal aliens”). These migrants have come to America in a manner that is deemed illegal. This means that they have come here without a visa, or they overstayed their visa, green card, or other permission that allows them to legally live and work in the U.S.
Many of these people get hard jobs here in the U.S. and provide valuable services to the economy.
As experts commonly note, they pay taxes—including sales, state, and federal taxes (as they often work under a Social Security number that doesn’t belong to them)—and don’t receive many of the benefits afforded to U.S. citizens (such as Social Security, Social Security disability benefits, etc.).
One question that commonly arises is:
What happens when an individual without proper documentation gets injured while working in the United States?Each state has its own specific rules and regulations. In this article, we will explore what happens in Georgia after an undocumented worker is injured on the job.
Immigrant and undocumented worker statistics
There are about 11 million undocumented people in the U.S. as of 2022, including an estimated 375,000 undocumented people in Georgia. This equates to roughly 4% of the total population of Georgia.
Many of these individuals take jobs that are dangerous and underpaid, and certain industries attract higher rates of undocumented workers. Some sectors with the highest rates of undocumented workers in Georgia include:
- Construction – 63,000 workers
- Professional fields (such as scientific, management, and administrative) – 32,000 workers
- Hotel and hospitality, entertainment, and recreation – 28,000 workers
- Manufacturing – 24,000 workers
- Retail trade – 15,000 workers
What are immigrant worker rights?
In Georgia, a vast majority of workers are entitled to workers’ compensation after a job-related injury or illness, regardless of their immigration status. As long as the employee regularly works for a business, they are entitled to the same compensation that all other employees receive.
Unlike in other states, Georgia’s workers’ compensation laws provide that undocumented workers are entitled to compensation even if they use a false identity to apply for workers’ compensation.
Even though the immigrant worker rights are clear, employers and insurance companies may still attempt to avoid liability for a workplace injury by “turning in” an undocumented immigrant. In such complicated situations, our workers’ compensation attorneys can also represent you and fight against the employer or their insurance company who failed to offer compensation after an injury.
In the News:
Georgia worker sues Pilgrim’s Pride after allegedly being fired for an injury
As reported in The Atlanta Journal-Constitution, Jovito Caballero, a Mexican immigrant, started working in Gainesville, Georgia, poultry plants in 1998, spending most of his career at Pilgrim’s Pride. In 2023, Caballero injured his back lifting a heavy machine part while working as a maintenance technician.
After the injury, he alleges that Pilgrim’s Pride asked him to get his doctor to sign a form stating the injury was not work-related. When he refused, he was fired and is now facing the cost of necessary back surgery, leading him to sue the company over his termination.
“My world came crashing down,” Caballero said. “I felt bad because I was hurt, and I was fired, and I didn’t know where to turn to.”
Debbie Berkowitz, a former chief of staff at the Occupational Safety and Health Administration (OSHA), says this isn’t the first time she’s heard of injured workers being given forms like this for their doctors to sign.
Claudia Caycho-Acosta, part of Caballero’s legal team, further explains that some employers attempt to avoid workers’ compensation costs by pressuring injured workers or misleading them about their rights. Unfortunately, immigrant workers are often vulnerable to exploitation and may be discouraged from reporting injuries due to fear of retaliation and lack of information.
Despite these assertions, industry representatives like Mike Giles of the Georgia Poultry Federation assert that companies are committed to following workers’ compensation laws and ensuring safety.
Caballero’s case highlights the challenges faced by immigrant workers in Georgia’s poultry industry, which heavily relies on Hispanic labor. Gainesville, known as the “Poultry Capital of the World,” has seen its Hispanic population more than double in the past 30 years. Poultry production, a hazardous occupation, accounts for nearly half of Georgia’s agricultural production.
Despite the industry’s economic importance, the high incidence of severe occupational injuries among poultry workers raises concerns about workplace safety and the fair treatment of injured workers.
“It was too many years spent working there for things to have played out like this,” Caballero said after being fired. “Because we’re immigrants, because we’re Hispanic, they do whatever they want with us.”
It remains to be seen what will happen with Caballero’s lawsuit, but his case reflects the broader issues within the industry and the precarious position of immigrant workers who are injured on the job.
Temporary total disability (TTD) benefits for undocumented workers
If an individual without proper documentation is injured at work, they are entitled to temporary total disability benefits if they are taken out of work by the authorized treating physician or if they are placed on light-duty work restrictions that the employer cannot meet.
This is the same procedure for any Georgia worker with proper documentation.
Temporary partial disability (TPD) benefits for undocumented workers
The issue of temporary partial disability benefits is a bit different from total disability benefits. TPD benefits are available to an injured worker when they return to work after an on-the-job injury but earn less money than they did before because of their restrictions.
If the undocumented worker returns to work and earns less, then they are entitled to temporary partial disability benefits. However, if the undocumented worker cannot return to the light-duty job because of their immigration status, then they may not be entitled to TPD benefits.
An example of this is when an injured worker is returned to light duty work as a driver. In order to be a driver, a proper driver’s license must be presented. If the undocumented worker cannot provide a legal document indicating they are legally allowed to drive, then they will not be owed either temporary partial or temporary total benefits because the reason for the economic loss is due to the immigration status and not the job-related injury.
Calculating the average weekly wage of an undocumented worker
A lot of times, it may be difficult to determine what the average weekly wage of the undocumented worker is, due to numerous factors. For example, if they are working “under the table,” there might not be a record of their employment, and discovery will have to be undertaken to demonstrate their actual pay so that we can determine an average weekly wage and therefore, a workers’ compensation rate
Additionally, employers may know that they are breaking the law by hiring undocumented workers and choose not to be forthcoming in reporting claims to the insurance carrier. This can make it difficult when initially filing a claim, but it doesn’t adversely affect the injured worker.
Busting popular myths, misconceptions, and stigmas surrounding workers’ comp.
Catastrophic injuries and workers’ compensation
Workers’ compensation benefits are also available to undocumented workers if the individual is catastrophically injured. If the worker’s injuries are severe enough for them to fall under the definition of O.C.G.A. 34-9-200.1 (g), then they are entitled to the benefits provided to them under that code section. This applies to both medical treatment, indemnity benefits, and rehabilitation suppliers. This means that the injured undocumented worker may be eligible for lifetime medical treatment and indemnity benefits for their on-the-job injury.
A catastrophic injury is defined by Georgia law O.C.G.A. 34-9-200.1 (g) as follows:
(1) Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
(2) Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
(3) Severe brain or closed head injury as evidenced by:
(A) Severe sensory or motor disturbances;
(B) Severe communication disturbances;
(C) Severe complex integrated disturbances of cerebral function;
(D) Severe disturbances of consciousness;
(E) Severe episodic neurological disorders; or
(F) Other conditions at least as severe in nature as any condition provided in subparagraphs (A) through (E) of this paragraph;
(4) Second or third degree burns over 25 percent of the body as a whole or third degree burns to 5 percent or more of the face or hands;
(5) Total or industrial blindness; or
(6)(A) Any other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified; provided, however, if the injury has not already been accepted as a catastrophic injury by the employer and the authorized treating physician has released the employee to return to work with restrictions, there shall be a rebuttable presumption, during a period not to exceed 130 weeks from the date of injury, that the injury is not a catastrophic injury. During such period, in determining whether an injury is catastrophic, the board shall give consideration to all relevant factors including, but not limited to, the number of hours for which an employee has been released. A decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act shall be admissible in evidence and the board shall give the evidence the consideration and deference due under the circumstances regarding the issue of whether the injury is a catastrophic injury; provided, however, that no presumption shall be created by any decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act.
(B) Once an employee who is designated as having a catastrophic injury under this subsection has reached the age of eligibility for retirement benefits as defined in 42 U.S.C. Section 416(l), as amended March 2, 2004, there shall arise a rebuttable presumption that the injury is no longer a catastrophic injury; provided, however, that this presumption shall not arise upon reaching early retirement age as defined in 42 U.S.C. Section 416(1), as amended March 2, 2004. When using this presumption, a determination that the injury is no longer catastrophic can only be made by the board after it has conducted an evidentiary hearing.
The rehabilitation supplier appointed to a catastrophic injury case shall have the expertise which, in the judgment of the board, is necessary to provide rehabilitation services in such case.
Medical benefits and PPD rating for undocumented workers
There are 2 benefits that an undocumented worker receives regardless of whether or not they are eligible for temporary partial disability benefits or temporary total disability benefits. Those are medical benefits and a permanent partial disability (PPD) rating, if one is warranted. These are the same rights that all injured workers can receive with the same restrictions.
All medical bills by an authorized treating physician have to be paid for under the fee schedule as required in Georgia workers’ compensation law (O.C.G.A. 34-9-200). If the injured undocumented worker is eligible for indemnity benefits, then they are also entitled to an independent medical evaluation paid for by the insurance carrier (pursuant to O.C.G.A. 34-9-202(e)).
Lump-sum settlements for injured undocumented workers
An undocumented worker can also receive a lump-sum settlement for their workers’ compensation case. The same rules apply to the stipulation and agreement. All settlements must be approved by the State Board of Workers’ Compensation as laid out in O.C.G.A. 34-9-15.
Who is exempt from workers’ compensation insurance in Georgia?
While undocumented workers are entitled to workers’ compensation benefits like any other worker in Georgia, certain professions are exempt from mandatory workers’ compensation insurance. These exemptions include:
- Railroad carriers. Workers employed by railroad carriers are typically covered under federal laws such as the Federal Employers Liability Act (FELA) rather than state workers’ compensation systems.
- Farm laborers. Agricultural workers are often exempt from workers’ compensation coverage, depending on the size of the farm and the nature of the labor performed.
- Domestic workers. Individuals employed as domestic servants in private homes, such as housekeepers, nannies, and gardeners, are generally exempt from workers’ compensation requirements.
If you fall into one of these categories or you’re unsure if you’re eligible for workers’ comp benefits after an injury, reach out to a local Atlanta workers’ compensation attorney to discuss your legal options.
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Undocumented workers face more challenges in getting workers’ compensation
If you are an undocumented immigrant injured at work, you will face several obstacles when you file a claim to get compensation for injuries.
For example, employers and insurance companies will sometimes intentionally put injured undocumented workers in a difficult situation by tipping off immigration authorities in a bid to not pay the worker for the injury or hiring a private investigator to check into the employee. If the immigration authorities realize the illegal status of the worker, they may imprison them before deporting them.
Also, in case of a serious injury, the medical costs may balloon in an uncontrollable manner. By intentionally delaying your benefits, an employer or insurer can increase the financial pressure you and your family are put under, making you more likely to accept a low settlement offer.
We protect immigrant rights to workers’ compensation in Georgia
Workers’ compensation is often a confusing and complicated legal process—even more so if you are an undocumented worker. Don’t let your employer threaten or intimidate you into accepting less than you deserve under Georgia immigrant worker rights.
You should contact an experienced Georgia work injury attorney for any of the following reasons:
- Your employer or insurance company is threatening to turn you in to immigration authorities.
- Your claim for compensation is denied.
- The insurance company denies you treatment.
- The insurance company fails to pay for compensation, yet you are unable to work.
- Your physician recommends further treatment, but the insurance company has closed your claim.
- You feel that the compensation you receive is not enough.
Simply put, undocumented workers have almost the same rights as any other injured worker in the state of Georgia, but they often face more risks and have a harder time getting benefits without legal representation.
If you have any questions about this topic or anything else related to workers’ comp, don’t hesitate to contact the experienced Atlanta workers’ compensation attorneys at Gerber & Holder Workers’ Compensation Attorneys. Every case is different, and our attorneys will tailor your case to meet your needs. All consultations are 100% free and confidential.
Contact us today to schedule your free consultation to learn more about your rights as an undocumented worker after an injury at work.
