Maine attorney for workers' compensation, criminal defense, civil litigation, and small business matters.

Maine Workers' Compensation Law blog

A humble collection of pieces about issues in Maine workers' compensation law by Attorney Zachary J. Smith.

Immigrants and workers’ compensation in Maine

I was contacted recently by a freelance journalist who is working on a piece about workers’ compensation coverage for undocumented workers among the different states. (One has to remember that each state has its own workers’ comp statute, and the fifty different systems vary greatly.) This is an issue I’ve read about before regarding other states’ treatment of workers who are either not present in the United States legally or present here legally but lacking legal authority to have a job. Some states, it seems, don’t allow immigrants, migrants, or refugees who lack the proper authority to work in this country to collect workers’ compensation benefits if they are hurt on a job that they’re not supposed to have. In my opinion such a law is cruel and poorly reasoned, considering that the employer is reaping the benefit of their labor and should be providing the same safety net to them that properly documented workers have. Furthermore, immigration and naturalization are strictly federal legal issues, and the states have no need to apply them to state insurance laws.

My interpretation of Maine’s workers’ comp law is that it does not exclude undocumented workers (or whatever else one might call them) from the flexible definition of “employee” or otherwise exclude them from the benefits and protections of the statute. And I have found no Maine judicial or administrative decision that says they are not covered. Therefore, they presumably are entitled to the same workers’ compensation remedies as other employees in this state.

However, there are a few snags here. First, based on basic research that I have read, the vast majority of migrant laborers in Maine work in agriculture, and it is safe to assume that some members of this group are not here with proper documentation. And small agricultural employers are not required to have workers’ compensation coverage, provided that they have no more than six employees or have only “seasonal” or “casual” employees and maintain sufficient liability insurance. Second, employers of “domestic” employees (household maids and the like) are not required to have workers’ comp coverage for them. Third, if an “alien” is injured and receives an offer of reinstatement to his or her job but cannot accept it because of the expiration of his or her eligibility to work in the U.S., then the employee is deemed to have refused the offer of reinstatement. Fourth, if the undocumented employee is working in Maine on a seasonal basis (for instance, on a farm or in a restaurant), then the average weekly wage is likely to be low. Fifth, an employee who is not authorized to work in the U.S. may have difficulty proving a work-related injury claim because an employer that is violating federal immigration law may pay its laborers only in cash and not keep records of workplace accidents.

Nonetheless, as I told the reporter, I would not decline to take an undocumented worker’s case simply because of his or her status. I may decline for other reasons, but I am confident that they constitute “employees” under Maine workers’ compensation law.