As I noted in part one of this backgrounder, there has been enormous growth in state-level immigration legislation over the last several years. Part two of the backgrounder focuses on state efforts to criminalize work by undocumented immigrants; include or exclude undocumented workers from workers’ compensation schemes; and prevent employer retaliation against undocumented workers.

Criminalizing Work

A handful of states have passed legislation making it a crime for undocumented workers to seek employment.

Most famously, Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act in 2010, making it a misdemeanor to seek work or to work without authorization. However, the Supreme Court struck down this section of the Act in Arizona v. US in 2012, holding that it was preempted by federal immigration law.

In 2011, Alabama passed HB 56, a draconian immigration law modeled after the Arizona law (which had not yet been struck down). Section 11(a) of the Alabama statute made it a crime for undocumented workers to solicit or perform work. However, a district court temporarily enjoined enforcement of this section as well as several others, and that injunction was affirmed by the Eleventh Circuit in 2012, shortly after the Supreme Court decided Arizona v. US. The Eleventh Circuit held that in light of the Supreme Court’s decision in Arizona v. US, the United States was likely to succeed on its preemption claims. Alabama appealed the decision to the Supreme Court, but on April 29, 2013, the Court denied cert. Alabama subsequently settled lawsuits brought by civil rights groups and the DOJ, agreeing to permanently enjoin enforcement of Section 11(a), among other sections of the Act.

In spite of Arizona v. US, Mississippi’s 2008 Employment Protection Act, which makes it a felony for undocumented workers to accept or perform employment for compensation, is still on the books. Under the law, undocumented workers are subject to penalties of up to five years in prison and fines of up to $5,000. Given its similarity to the provisions of the Arizona law struck down by the Supreme Court, it seems unlikely that Mississippi’s law survives Arizona, but no court has yet ruled on the issue.

Workers Compensation

Most non-federal employees’ access to workers’ compensation is governed by state law. Although each state has its own policy with regard to undocumented or non-resident workers, the laws generally fall into one of three categories: 1. Laws that explicitly define “employee” as excluding undocumented workers and/or non-residents; 2. Laws that explicitly define “employee” to include undocumented and/or non-resident workers; and 3. Laws that do not specify whether “employees” include undocumented and/or non-resident workers.

The latter two categories of laws have been challenged as being preempted by the federal Immigration Reform and Control Act (IRCA), as interpreted by the Supreme Court in Hoffman Plastic Compounds v. NLRB. In Hoffman, the Court held that IRCA preempted the NLRB from awarding backpay or reinstatement to undocumented workers for violations of the NLRA. The Court reasoned that since “under the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies . . . awarding backpay to illegal aliens runs counter to policies underlying IRCA.”

Extending this logic to the workers’ compensation laws, some have argued that IRCA preempts the award of workers’ compensation benefits to undocumented workers. However, the majority of courts to have addressed this issue, both before and after Hoffman, have held that IRCA does not preempt states from awarding workers’ compensation to undocumented workers.

1. Laws that explicitly define “employee” as excluding undocumented workers and/or non-residents

Nevada is the only state that specifically excludes all non-residents from eligibility for workers’ compensation. A few other states (Oregon and Wyoming) bar undocumented workers from receiving workers’ compensation but permit non-resident work-authorized employees to receive benefits.

      2. Laws that explicitly define “employee” to include undocumented and/or non-resident workers

Nearly 20 state statutes explicitly provide that undocumented and/or non-resident workers are eligible for workers’ compensation. Oklahoma law requires that non-residents receive the same amount of compensation provided to citizens. Virginia, Ohio, Michigan, Illinois, Alabama, and Minnesota define “employee” as including “aliens.” North Carolina, South Carolina, California, Florida, Colorado, Arizona, New Mexico (for purposes of Occupational Disease and Disablement compensation), and Montana go further and define “employee” as including “aliens” whether authorized to work or not.

     3. Laws that do not specify whether “employees” include undocumented and/or non-resident workers

About half of state workers’ compensation laws do not specify whether an “employee” eligible for workers’ compensation must be authorized to work. In such states, courts have nonetheless often ruled that undocumented workers are eligible for workers’ compensation.

A 2004 decision by the Georgia Supreme Court held that since the Georgia workers’ compensation “statute defines employee as ‘every person in the service of another under any contract of hire or apprenticeship,’ ‘every person’ would necessarily include illegal aliens.” The Maryland Supreme Court, Connecticut Supreme Court, Superior Court of New Jersey,  Louisiana Court of Appeals, Pennsylvania Commonwealth Court (affirmed by the Pennsylvania Supreme Court), and Kentucky Supreme Court likewise concluded that undocumented workers were eligible for workers’ compensation, although the relevant state statutes did not explicitly define “employee” as including “aliens.”

The Maryland Supreme Court explained, “public policy . . . favors the inclusion of undocumented workers as “covered employees” under the statute. Exclusion of this class of persons from the statute’s coverage would retard the goals of workers’ compensation laws and leave these individuals with only two options, receive no relief for work related injuries or sue in tort. Moreover, without the protection of the statute, employers could, and perhaps would, take advantage of this class of persons and engage in unsafe practices with no fear of retribution, secure in the knowledge that society would have to bear the cost of caring for these injured workers.”

Employer Retaliation

One final category of laws worth mentioning are those targeting employer retaliation against undocumented workers.

The Supreme Court held in Sure-Tan v. NLRB that it was an unfair labor practice for employers to contact immigration officials for the purpose of retaliating against undocumented workers for engaging in protected activity under the NLRA. However, the NLRA provides for very limited remedies against employers who commit such unfair labor practices. Moreover, Sure-Tan’s ruling was limited to the NLRA context.

California has recently attempted to do more to protect undocumented workers from unscrupulous employers. A 2013 law provides for penalties (including suspension of their business license and criminal prosecution for extortion) against employers who threaten to or do call immigration officials as retaliation against workers for exercising their rights. In addition, lawyers who threaten to report an undocumented worker involved in an employment suit may face discipline, suspension, or disbarment.

Going Forward

This dizzying patchwork of state laws will continue to govern immigrant workers and their employers until Congress passes comprehensive immigration reform, a prospect that seems unlikely given the current political climate.