Well sort of…
N.C. Gen. Stat. § 97-2(2) states that the term “employee” means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed...
The primary case law in our state interpreting N.C. Gen. Stat. § 97-2(2) is Gayton v. Gage Carolina Metals, Inc., 560 S.E.2d 870 (N.C. App. Ct. 2002). Gayton holds that disability benefits are payable if the illegal person is unable to work because of the injury. However, disability benefits are not payable if the illegal person is unable to work due to his illegal status and not the injury.
The law on his face sounds pretty reasonable, and in most of my work representing undocumented workers in a workers compensation context, I have found that it produced fairly reasonable results. Up until now that is.
Currently I am representing a young man who does not have adequate documentation to work legally in the United States. Originally from Guatemala, he has been in the US for more than 25 years. He is married to a citizen and has been approved as a permanent resident and is currently just waiting for his green card. He is well-spoken in English, and he is a good-natured person who suffered a very serious injury at a dangerous workplace. At the time of this accident on May 7, 2014, my client had been employed with the defendant-employer for 11 years, and was making more money than he was able to make it any other work environment.
Due to an unsafe work practice in this local metal and iron shop, my client suffered a two level cervical disc herniation while working in his position as a maintenance worker. He eventually underwent the surgery to correct the herniations and fuse the vertebrae in his neck. But because of the delays inherent in our workers compensation system, he suffered permanent nerve damage while waiting for the surgery. My client has weakness and numbness in his left side as well as neck pain, middle back pain, dizziness and headaches. This injury occurred on May 7, 2014, and despite having seen four different doctors, my client’s prognosis is not much improved.
Starting on February 12, 2015 the employer-defendant started writing a series of letters to my client stating that he would be terminated if he could not produce proper documentation within 120 days of the first letter. Given that the employer-defendant had a practice of hiring and retaining undocumented workers long term, this appeared to be a clear artifice to excuse the employer for terminating my client, and thereby avoiding paying sizable workers compensation benefits to my client.
But under Gayton, after presumably receiving technical advice from their workers compensation defense counsel, the employer apparently understood that this termination would not relieve them of their duties under the Worker’s Compensation act to pay my client weekly checks because of his inability to do his pre-injury job (and his inability to find suitable less physically demanding employment).
And so on July 11, 2015 the day before the defendant-employer was to terminate my client because of his inability to present proper documentation, the employer-defendant terminated my client, and concocted, and has sworn to, an elaborate false story that my client resigned.
And even though this case is set to go mediation (for the second time) in coming weeks, I doubt that we can reach a settlement. My client is entitled to a settlement large enough to pay for his future medical treatment, and weekly checks while his at out of work, or at a minimum, to be paid for his wage loss differential for 500 weeks. And since the employer went to such lengths to create an elaborate false story about my client resigning, I know that they will likely not pay my client what he would be entitled to under the workers compensation act.
And so we will move forward and battle this injustice in court. Yes this is just one person. But these are the lengths that some unscrupulous employers will go to avoid their duty to pay workers compensation benefits due to undocumented workers. And recently a bill was proposed and the North Carolina legislature to deny workers compensation benefits to all undocumented workers. Luckily this measure did not pass. But we must be vigilant to educate workers about their rights and protect those rights to the fullest extent of the law.
Laura Jenkins practices workers’ compensation and personal injury law in Raleigh, NC at the Law Office of Laura S. Jenkins, PC with an emphasis on serving Spanish speakers. She has tried many cases at the Deputy Commissioner and the Full Commission level of the Industrial Commission. Ms. Jenkins has also litigated civil injury claims through Superior Court, the Court of Appeals, and the Supreme Court of North Carolina.