Employers are often surprised to learn that undocumented or illegal aliens are, under Georgia law (and the laws of most states), eligible for workers’ compensation benefits.
Employers are often surprised to learn that undocumented or illegal aliens are, under Georgia law (and the laws of most states), eligible for workers’ compensation benefits. This is generally true even when the undocumented alien presents false documents (e.g., a fake social security card) to procure employment in the first place.
Of course, justice lies at the heart of this rule, and it seems fair that one injured on the job should be able to receive medical care regardless of one’s immigration status. Regardless, employers are rightfully surprised by the notion that they can be forced to pay benefits to undocumented aliens. After all, there is an inherent tension between Georgia workers’ compensation law and federal immigration law with regard to the treatment of undocumented aliens who reside in this country. For example, workers’ compensation laws are designed to provide wages for periods of disability which are caused by injuries in the workplace, and to promote a return to work. The fact that an employee is illegal does not in any way bar him from obtaining benefits, and even illegal aliens are encouraged to return to gainful employment. In contrast, federal laws are designed to make the employment of illegal aliens unlawful in the first place. Thus, under federal immigration law, undocumented aliens cannot lawfully work in the United States, and employers cannot knowingly hire them, let alone rehire them.
In any event, it is clear that illegal residents may recover benefits for work-related injuries. What is less clear is whether the dependents of undocumented aliens—especially those who do not reside in this country—may recover benefits payable due to an illegal alien’s work-related death. One of our sister states, Alabama, recently held that they cannot.
A. Alabama Bars Nonresident Beneficiaries from Obtaining Death Benefits
Alabama, like Georgia, possesses a statute which does not exclude illegal aliens from qualifying as an “employee” working “in the service of” another under a “contract of hire.” However, unlike Georgia, Alabama’s workers’ compensation act provides that “compensation for the death of an employee shall be paid only to dependents who, at the time of the death of the injured employee, were actually residents of the United States.” Ala. Code. § 25-5-82 (emphasis added). In short, Code Section 25-5-82 discriminatorily excludes nonresident alien dependents of a deceased worker from eligibility for death benefits.
In a decision rendered on February 6, 2009, the Court of Civil Appeals of Alabama considered whether Code Section 25-5-82 contravenes the equal protection guarantee contained in the United States Constitution. Duran et al. v. Goff Group, 2009 Ala. Civ. App. LEXIS 36 (Feb. 6, 2009). By way of background, the equal protection clause of the 14th Amendment of the United States Constitution requires states to treat a person or class of persons the same as it treats other persons or classes in like circumstances. Under this rule of law, legislation which discriminates must have a rational basis for so doing. But if the legislation adversely affects a “fundamental” right or involves a “suspect” class (e.g., all members of a particular race), it is unconstitutional unless a compelling state interest justifies and indeed requires the law in question. But there is a catch—the United States Supreme Court has established “that aliens receive constitutional protections [only] when they have come within the territory of the United States.” See U.S. v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990). Thus, nonresident aliens are not afforded equal protection by the Constitution.
In Duran, the claimant’s attorney took the position that Alabama Code Section 25-5-82, by denying death benefits to nonresident alien dependents of deceased workers’ who are covered by the act (despite the fact that they are illegal), contravenes the equal protection clause. See Duran, 2009 Ala. Civ. App. LEXIS 36. In essence, the argument was that when a worker dies, the dependents of that worker “step into the shoes” of the decedent, and enforce the rights he would have maintained had he lived. Thus, the beneficiaries argued, the law discriminates not against nonresident alien beneficiaries (who are not afforded the guarantees of equal protection), but against the deceased resident aliens themselves (who warrant equal protection, but need their nonresident dependants to enforce their rights in death).
Although the argument was clever, the court did not agree. In holding the statute constitutional, the Court of Civil Appeals held that nonresident alien beneficiaries do not step into the constitutional shoes of a deceased employee when filing a claim for death benefits. In so ruling, the court noted that the entitlement to death benefits is not a “right” which is vested in an employee, but is merely a “statutory benefit” which only accrues once the employee dies. Thus, death benefits are not the vested property right of the employee, but a “benefit” conferred on the beneficiaries. As a result, the equal protection clause was not implicated, because although the statute discriminated against nonresident aliens, such persons are not afforded the same constitutional guarantees.
B. What’s the Rule in Georgia, and What Does the Future Hold?
Although it used to, Georgia’s current death claim statute does not discriminate between residents and nonresidents, unlike Alabama Code Section 25-5-82. Prior to 1995, Georgia’s Workers’ Compensation Act limited nonresident entitlement to death benefits to $1,000.00 only. Furthermore, just as the Court of Civil Appeals upheld Alabama’s challenged statute, the Supreme Court of Georgia held that Georgia Code Section 34-9-265, as it was formerly written, survived equal protection scrutiny. See Barge-Wagener Constr. Co. v. Morales, 263 Ga. 190 (1993).
However, the Georgia General Assembly amended the Act to repeal the $1,000.00 limitation, effective July 1, 1995. GA. LAWS 1995, p. 642, § 11. Thus, despite the fact that the majority view among the various American jurisdictions that have addressed state law restrictions upon payment of workers’ compensation death benefits to nonresident dependents have upheld such restrictions, Georgia now stands in the minority.
In any event, although nonresident beneficiary death claims are currently uncommon, this is an issue which could certainly become more prevalent in the future. This is particularly true given that recent studies estimate illegal immigrants within the United States could take up to 300,000 construction jobs directly funded by the American Recovery and Reinvestment Act of 2009 (commonly referred to as “The Stimulus Package”). If this estimate is accurate, up to 15% of the two million jobs that new taxpayer-financed projects are predicted to create will be taken by illegal or undocumented aliens. Thus, nonresident beneficiary death claims are likely become more common in the future, as many illegal aliens are thought to have dependents back home who represent potential beneficiaries.
For now, nonresident alien beneficiaries appear entitled to the same workers’ compensation death benefits that resident citizens are—at least in this state. However, given that our sister state, Alabama, recently brought the issue to the forefront, it will be interesting to see how these claims play out in the future.