By Deborah Casey Brown and Paul D. Greene
We rarely hear a news broadcast or a radio talk show without a story involving illegal aliens. One issue which is not widely discussed; however, is whether illegal aliens are entitled to employment benefits, such as workers' compensation.
Under the South Carolina Workers' Compensation Act, the term employee is broadly defined to include "every person . . . including aliens . . ., whether lawfully or unlawfully employed . . . ." Case law is silent on the subject to date, but given the mandate of liberal construction of the South Carolina Workers' Compensation Act, as well as the plain language of the Act itself, there is little reason to believe the statute would be read by any court to not include illegal aliens in the definition of "employee". Thus, illegal aliens who sustain an injury by accident arising out of and in the course of their employment are entitled to workers' compensation benefits.
Federal law appears to be in direct conflict with South Carolina law. Under the Immigration Reform and Control Act of 1986 (IRCA), it is illegal to hire an individual one knows or reasonably should know is not authorized to work in the United States. Moreover, the United States Supreme Court has held that the IRCA "forcefully made combating the employment of illegal aliens central to the policy of immigration law." In Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, the NLRB had awarded back pay to an illegal alien who was laid off for supporting a unionizing campaign. The Supreme Court found the NLRB had overreached, as its proposed remedy (back pay) ran counter to the policy behind the IRCA.
The issue now is whether the federal government has "occupied the field" in the legal arena involving the provision of employment-related benefits to illegal aliens. In other words, do the IRCA and Hoffman combine to say providing any employment benefits to illegal aliens is unlawful? If so, if an illegal alien is injured on the job in South Carolina, does federal law bar him from receiving benefits under the South Carolina Workers' Compensation Act? That question has not yet been answered; however, it raises many policy considerations, not the least of which is whether individuals working illegally should be "rewarded" for their illegal behavior. Until that question is answered by the courts, illegal aliens continue to be entitled to workers' compensation benefits in South Carolina.
Deborah Casey Brown, a Partner at GWB, is a certified Employment and Labor Law specialist. For more information, visit www.gwblawfirm.com or call Gallivan, White & Boyd, P.A. at (864) 271-9580.
Paul Greene, an associate at Gallivan, White & Boyd, P.A., practices law in the areas of workers' compensation and administrative law. For more information, visit www.gwblawfirm.com or call Gallivan, White & Boyd, P.A. at (864) 271-9580.
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