Filing a Workplace Claim and Immigration Possible Issues
Interviewer: What if you’re not a citizen. Can you still file a claim, even if you are an undocumented immigrant?
Stephen Boutros: Absolutely. Your employer owes you the legal duty to give you a safe workplace, regardless of your country of residence, regardless of your legal status in this country.
That’s another thing, you see a lot of times employers hire undocumented immigrants and take advantage of them. When these workers get hurt the employers intimidate them. They make them think that because they are illegal, they are going to go to jail. That’s completely false. If you don’t have a right to be here, you don’t have a right to be here, but at the same time, an employer doesn’t have the right to hurt you and not be held accountable for their negligence.
Interviewer: If someone’s illegal, can still come forward and file a case? Should they fear their employer’s threats? Will their immigration status be challenged?
Stephen Boutros: It could be challenged just like it could for anyone who’s not legally documented to be here. However; you still have a right to pursue your case and if you’re going to get deported, you’re going to get deported either way; you might as well pursue your legal rights.
Filing a Claim for a Workplace Injury as an Independent Contractor
Interviewer: What happens if you are not an employee but you are an independent contractor? Do you have any protection to sue?
Stephen Boutros: If you’re an independent contractor, then you can still make claims for negligence against the party that hurt you. You don’t have a specific Cause of Action: Negligent Failure to Provide a Safe Workplace, but you can still sue on a Common Law Negligence Cause of Action.
If you’re a contractor, obviously your comparative negligence comes back into play in the personal injury scheme. If the other party is 70% responsible and you as an independent contractor are 30% responsible, then your damages will be reduced by 30%, the percentage of your own negligence, and you can recover the 70% from the other negligent party.
In the non-subscriber scheme, if the employer is 70% negligent and the employee is 30% negligent, the employee still gets to recover 100% of his damages. The only time an employee’s negligence claims are barred against a non-subscriber employer is when the employee is the sole proximate cause of his injuries or if a jury finds that the employer was zero percent negligent, as in not negligent at all.