Jeffrey P. Gale, P.A. // Entitlement to Lost Wages for Undocumented Workers Under Florida’s Workers’ Compensation System

These are uncertain and challenging times in Florida (and the entire United States) for undocumented immigrants, as the Trump Administration and Florida Governor Ron DeSantis seemingly delight in making their lives increasingly difficult.

Interestingly, when it comes to workers’ compensation benefits, Florida law protects certain undocumented workers.

Florida offers three types of wage-loss benefits to injured workers: (1) Permanent Total Disability (§440.15(1), Fla. Stat.); (2) Temporary Total Disability (§440.15(2)); and (3) Temporary Partial Disability (§440.15(4)). To qualify for any of these benefits, the employee bears the burden of proving that the inability to obtain employment—or to earn pre-injury wages—is the result of physical limitations caused by the industrial accident, rather than general economic conditions or a lack of available work. City of Clermont v Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984).

Because undocumented workers are prohibited under both federal and state law from working legally in the United States, they are, by definition, unable to meet the burden of proving an ability to obtain lawful employment.

Surprisingly, Florida has adopted an equitable approach to this issue. In HDV Construction Systems, Inc. v. Aragon, 66 So. 3d 331 (Fla. 1st DCA 2011), the First District Court of Appeal explained it as follows:

Although there is no shortage of debate that can be had on the issue of illegal labor and its effect on our state, there is no dispute that the Florida Legislature has expressed an unyielding, textual intent that aliens, including those who are illegal and unlawfully employed, be covered and compensated under the Florida Workers’ Compensation Law. See § 440.02(15)(a), Fla. Stat. (2007) (defining “employee” to include any person who receives remuneration from an employer, including aliens, whether “lawfully or unlawfully employed”); see also Safeharbor Employer Servs., Inc. v. Velazquez, 860 So.2d 984 (Fla. 1st DCA 2003) (“Therefore, we conclude that the Florida legislature’s right to enact workers’ compensation benefits for illegal aliens is not preempted by federal action.”). Indeed, the purpose of workers’ compensation law is to place on industry, rather than the general taxpaying public, the expense incident to the hazards created by industry. Gore v. Lee County Sch. Bd., 43 So.3d 846, 849 (Fla. 1st DCA 2010) (explaining workers’ compensation legislation is designed to relieve society in general of expenses created by industry). Moreover, because the employer stands to benefit and profit from its employment of labor, and further is in the best position to avoid the risk of loss, the courts have uniformly recognized the impropriety of foisting on society the costs of a “broken body” and “diminished income” created by industry. Mobile Elevator Co. v. White, 39 So.2d 799, 800 (Fla.1949).

This broad pronouncement is subject to an important qualification. In Cenvill Development Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985), the court held that an employer who hires an undocumented worker is precluded from asserting the worker’s immigration status as a defense to avoid liability for disability benefits—but only where the employer knew or should have known of the worker’s true status. As the court explained, this rule ‘prevents unauthorized aliens from suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage-loss benefits.’ Id. at 1170.

In HDV, the Judge of Compensation Claims concluded, based on the authority of Cenvill Development Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985), that, because the Employer knew or should have known of Claimant’s illegal status prior to his injury, but continued his employment nonetheless, the E/C was precluded from using Claimant’s illegal status as a defensive measure — requiring the E/C to respond to the disability imposed by Claimant’s significant and objectively demonstrated work-related injuries and physical restrictions, and his vocational limitations which include, but are not limited to, his unauthorized work status. The First DCA affirmed the lower court’s decision.

In our initial client interviews with undocumented workers, as well as in our discovery, we focus on establishing that the employer knew or should have known of the employee’s immigration status. For example, in our initial formal document requests, we ask the employer to produce ‘All Form I-9s signed by the claimant and the employer.’ The Form I-9, or Employment Eligibility Verification, is a mandatory government form that employers must complete and retain to confirm the identity and work authorization of every individual hired in the United States. Both the employee and employer are required to complete the form, which serves as proof of compliance with laws prohibiting the employment of unauthorized workers. The employer’s failure to ensure this form was completed indicates that it knew, or at minimum should have known, that its employee was undocumented. This is not the only way of demonstrating the requisite evidence.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.