Undocumented Status Shouldn’t Deny Injured Workers Due Compensation

The United States of America was founded by immigrants who came seeking a better life. They came from all over the world, trading their struggles against poverty, injustice, and tyranny for the sometimes brutally hard work and struggle of carving out a home for themselves and their families in a strange new land. Indeed, this is a nation built by the blood, sweat, and tears of immigrants, many of whom did not have the official documents to make them “legal”. Today, the U.S. Department of Homeland Security estimates there are at least 12 million unauthorized immigrants in the U.S, nearly 7 million of whom come from Mexico. Migrant workers, whether legal or “illegal”, documented or undocumented, play a vital role in building this country and fueling our economy. The average undocumented family pays more than $4200 in annual federal taxes, but that same family earns far less than the average yearly salary of all Americans. As many as 85% of the 1.6 million farmworkers in this country are undocumented. As many as 40% of food service and restaurant workers are undocumented. Many times the so–called captains of industry seek out undocumented workers for the most physically demanding and least desirable jobs because they work so hard for less money, and they are afraid to complain about their low pay and horrible working conditions. And the industry knows these hard-working folks are much less likely to file a claim when they are injured on the job out of fear related to their status. These hard-working people should not live and work in fear that they fall outside the protection of the American justice system that protects us all, and some courts are beginning to reinforce that notion.

All workers who are injured on the job, including undocumented workers, are eligible to receive monetary compensation for injuries and damages. If you have been injured in a workplace accident, fill out the form on this page for a free case consultation. Don not wait! Protect your rights and your family with expert legal help from Junell & Associates, PLLC.


Undocumented Longshoreman and Benefits under Longshore and Harbor Workers’ Compensation Act (LHWCA)
Bollinger Shipyards, Inc. v. Rodriguez (Fifth Circuit)

The U.S. Court of Appeals for the Fifth Circuit decided in April 2010 that the undocumented status of an injured longshoreman will not be a bar to the recovery of benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA).
In Bollinger Shipyards, Inc. v. Rodriguez, 604 F.3d 864 (5th Cir. 2010), the court held that undocumented immigrants are eligible for benefits under the LHWCA. Jorge Rodriguez was working for Bollinger as a pipefitter when he fell while welding the wall of a ship. Due to the injury, he was only able to perform light-duty work for about a month and eventually had to stop working. He sought benefits under the LHWCA.

At the administrative trial, Bollinger’s vocational rehabilitation expert testified that because of Rodriguez’s status as “an undocumented immigrant,” he “had suffered no loss of legal earning capacity, as he had no legal earning capacity prior to being injured.”
The administrative law judge (ALJ) held that undocumented immigrants are eligible for LHWCA benefits and ordered that Bollinger pay benefits from the date of the accident to the present, among other things. The Benefits Review Board (BRB) affirmed the ALJ’s order and also held that undocumented immigrants are entitled to benefits under the LHWCA. Bollinger petitioned for a review of the BRB’s decision.

Bollinger argued that undocumented immigrants are “per se ineligible to receive indemnity benefits under the LHWCA, as any such benefits ‘would be based on illegally obtained wages.’” Bollinger went so far as to compare Rodriguez to a drug dealer, a pirate, and a Mafioso in regards to “ill-gotten wages.”

The LHWCA provides workers’ compensation benefits to an “employee” if disability or death “results from an injury occurring upon the navigable waters of the United States. … ” “Employee” is defined in the Act as “any person engaged in maritime employment. …” The Act also states that “compensation under [the LHWCA] to aliens not residents (or about to become nonresidents) of the United States or Canada shall be the same in amount as provided for residents. …” As the Fifth Circuit pointed out, the Act makes no reference to “illegal” or “undocumented” nor does it exclude undocumented immigrants from the definition of “employee.”

Bollinger further argued that the BRB’s ruling undermines the Immigration Reform and Control Act of 1986 (IRCA). The Court then reviewed the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB.55 In Hoffman, the Court held that the IRCA precluded the National Labor Relations Board from awarding backpay to an undocumented immigrant under the National Labor Relations Act (NLRA). The Court noted that 1) the employee qualified for the back pay award only by remaining in the United States illegally, and 2) the employee could not mitigate damages, as required, without violating the IRCA. The Fifth Circuit disagreed with Bollinger for three reasons.

First, the LHWCA is a non-discretionary, statutory remedy, unlike discretionary back pay under the NLRA. Second, the LHWCA is an injured longshoreman’s exclusive remedy and thus, is a substitute for tort claims. An undocumented immigrant would have the right to sue in tort. Therefore, “the remedy provided by the LHWCA is merely a substitute for the negligence claim that an employee could otherwise bring against his employer in tort.” Third, the plain language of the LHWCA provides compensation to non-resident aliens and aliens who are about to become non-residents. Also, unlike NLRA cases, an injured longshoreman does not have to mitigate damages under the LHWCA, nor does the employee have to remain in the United States to qualify for benefits. Therefore, awarding benefits to an undocumented immigrant under the LHWCA does not undermine the IRCA.

After reviewing the statutory text of the LHWCA, previous Fifth Circuit decisions, and the Supreme Court’s decision in Hoffman, the Fifth Circuit was “convinced that Rodriguez [was] eligible to receive benefits under the LHWCA” and, therefore, denied Bollinger’s petition for review in all respects.

Bottom line: An undocumented worker can receive money damages under the LHWCA.

There is a well-publicized “war on illegal aliens” going on in this country, with politicians using inflammatory language against them as a group to stir up fear and loathing among the voters. States like Arizona have passed draconian immigration laws that dehumanize their undocumented residents there. It seems when economic times are bad, or candidates need to stir up their “base”, a certain group of politicians will always parade so-called “illegal aliens” in front of the voting public as the source of all our economic woes.

But this is a nation of laws, not men, and there are laws to protect these immigrants even though they may lack all the documents the law requires. The attorneys at Junell & Associates know these laws and are ready to make sure they are followed if you are injured and deserve compensation. Don’t let your status as an undocumented worker hold you back from seeking justice in America. And remember, this country was built by people like you, for people like you.

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By: Patrick Kirby, Houston, Texas, Junell & Associates, Attorney