Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Benefits for Undocumented Aliens

Injured employees are entitled to workers’ compensation benefits. Undocumented aliens are considered employees under Florida’s workers’ compensation system. Section 440.02(15)(a), Florida Statutes provides as follows:

“Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors. (Bold added for emphasis.)

Employees missing time from work are eligible for lost wage benefits (i.e., indemnity) for partial and total disability. 440.15(1) (PTD), 440.15(2) (TTD), 440.15(4) (TPD). Entitlement to temporary partial disability benefits (TPD) depends on whether Claimant can demonstrate a causal link between his injury and his alleged wage loss. Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla. 1st DCA 1985).

The employment of illegal aliens is prohibited by federal and state law. These laws would seemingly prevent undocumented aliens from being able to demonstrate a causal link between their injuries and their wage loss. However, Florida’s workers’ compensation system has an exception:

the employer is precluded from asserting the status of an illegal alien as a defensive matter so as to avoid liability for disability benefits otherwise due when the employer “knew or should have known of the true status of the employee.” Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla. 1st DCA 1985).

The exception arises from the Florida Legislature’s belief that “the cost of injuries sustained by unlawful workers, being no less real than those suffered by lawful workers, should be borne by the industry giving rise to the risk (and best positioned to avoid the loss), not the general taxpaying public.” HDV Construction Systems Inc. v Aragon, 66 So.3d 331, 333 (Fla. 1st DCA 2011). Further from HDV:

the principle that an entity that knowingly employs unlawful labor should not be able to shirk the cost of the injuries it creates—and in turn, shift the cost of the damages that it has knowingly created on the taxpaying public— ultimately placing it in a unfairly superior financial position to those employers who operate lawfully.

The exception “also protects an employer who, through no fault of his own, would end up paying continued wage loss benefits to an employee who cannot legally be employed.” Cenvill at 1170.

The evidence of whether the employer knew or should have known the true status of the claimant as an unauthorized alien is often conflicting. Early on, we request from the employer the claimant’s personnel file, including the job application and all I-9 employment eligibility verification forms.