Yes, if you're an undocumented worker injured on the job in South Carolina, you have the same rights to workers' compensation that every other employee has. More than five percent of America's labor force is made up of undocumented workers, and there are approximately 100,000 undocumented residents in South Carolina, which is one of 13 states that protect the rights of all employees to workers' comp.
Workers' Comp Law in South Carolina
Under South Carolina law, every person engaged in employment, including lawfully or unlawfully employed "aliens" (workers from foreign countries), is considered an employee, and nearly all South Carolina employees are eligible for workers' compensation.
Although federal law prohibits U.S. companies and businesses from knowingly employing undocumented immigrants, employers are not required to carry out thorough background checks to verify the immigration status of employees. Even if you have no legal documents when you apply for your job, once you're hired, you're an employee who's entitled to workers' comp benefits for a work-related injury.
Don't Be Intimidated by the Insurance Company
Workers' compensation benefits are actually paid by your employer's insurance company, which is a for-profit business interested only in its bottom line. The insurer earns money by collecting premiums and investing that money in interest-bearing accounts to earn more income. Paying expensive workers' comp benefits costs the insurance company money, so it will always look for ways to delay, dispute, or deny worker's comp claims, especially those that are expensive or complicated.
Your employer or the insurer might try to tell you that you cannot file a claim because you're undocumented. Do not be intimidated by this false information. You are entitled to file a claim for benefits, and you cannot be fired or penalized for doing so. A workers' comp lawyer can help you to overcome resistance or intimidation from your employer or the insurance company.
Exceptions to Workers' Comp Eligibility
As long as your employer subscribes to workers' comp and you're a full-time, part-time, or seasonal employee receiving regular payments for your work, you should be able to file a claim for benefits if you're hurt on the job. There are, however, some exceptions to this rule.
Employees Who Are Ineligible for Workers' Comp Insurance
While being undocumented doesn't prohibit you from collecting workers' comp benefits, you could be ineligible for other reasons. You may not receive benefits if:
- You work for a company with fewer than four employees or an annual payroll of less than $3,000.
- You work for a railroad or agricultural business.
- You're a commissioned real estate agent.
- You're a casual worker.
- You're an independent contractor.
Casual vs. Seasonal Employees
If you're a student with a summer job or a salesperson working in a store during the busy holiday shopping season, you're a seasonal employee regardless of your immigration status. Both full- and part-time seasonal employees are eligible for workers' comp benefits if they're injured on the job. If, however, you work only on an on-call or as-needed basis, without a specific schedule or regular payments, you might be considered a casual worker who is not eligible for workers' comp. An attorney can help you to clarify your status.
An independent contractor is someone who brings tools or other equipment to a work site, signs a contract for a particular job, has no taxes deducted from their pay for the job, and receives a 1099 wage statement rather than a W-2. Independent contractors generally are not eligible for workers' comp benefits, but there are some exceptions.
A subcontractor on a construction site might be considered an employee of a general contractor who is required to provide workers' comp coverage for the subcontractor. In such a case, the subcontractor would be covered in the event of a work injury. Some employers, however, intentionally miscategorize their employees as independent contractors in order to avoid paying workers' comp premiums. Again, your workers' comp lawyer can help you determine your status.
Workers' Comp Benefits for Undocumented Workers
If you're an undocumented employee accidentally injured on the job, workers' comp benefits should pay all your medical expenses and reimburse two-thirds of your lost wages. If your injury requires emergency treatment, go to the nearest medical facility immediately. Once your condition is stable, report your accident in writing to your supervisor. You may then file your claim for benefits by submitting Form 50 from the website of the South Carolina Workers' Compensation Commission (SCWCC).
Your ongoing medical care should come from a physician whom the insurance company approves. Follow this doctor's orders precisely, keep all appointments, and take all medication as prescribed. If your injuries are serious or you encounter any resistance from your employer or the insurer, contact a workers' comp attorney to evaluate your case. Your attorney can also make sure you complete the claims process correctly and on time, deal with any delay tactics or intimidation that you encounter, and appeal your claim if it's denied.