Undocumented Worker Rights in North and South Carolina

Undocumented workers have the same rights as any other employee

If you’re an undocumented immigrant residing in North Carolina or South Carolina and your employer tells you that you are not eligible for workers’ compensation benefits, you should know this: Most undocumented workers ARE eligible for workers’ compensation in both states.

According to the Migration Policy Institute, there are more than 300,000 undocumented workers in North Carolina and more than 90,000 in South Carolina. Nationwide, more than 5% of the total workforce is comprised of undocumented workers. Many are employed in dangerous jobs like construction, warehousing, meatpacking and farm work.

Both North Carolina and South Carolina have workers’ compensation laws that cover most workers hurt on the job, including undocumented workers.

Statutory inclusion of undocumented workers

There’s no question that undocumented workers are covered by North Carolina and South Carolina worker’s compensation laws.

Both states have laws that define a covered employee as any employed person “whether lawfully or unlawfully employed.”

Unethical employers might lie about these laws so you won’t file for benefits, so you shouldn’t always take them at their word but instead consult a work injury attorney. Although hiring undocumented workers is unlawful, these same employers are often eager to hire undocumented workers to take advantage of their status.

Can you be deported for filing a workers’ comp claim?

Understandably, if you are undocumented, you might worry about your employer retaliating and reporting you to immigration authorities. It should be noted that the employer who hires an undocumented worker is potentially liable for criminal and civil penalties. This makes employer retaliation (like getting fired after a job injury) less likely.

That is more reason for you to consult an experienced workers’ compensation attorney experienced with immigration issues. Even if you ultimately decide not to pursue a workers’ compensation claim, at least you will be making a well-informed decision.

Workers’ compensation protection extends to most workers—undocumented or not

Let’s be clear:

An undocumented worker has the same workers’ compensation rights as any other employee.

North Carolina and South Carolina require most employers to carry workers’ compensation coverage. North Carolina requires it for employers with 3 or more employees. South Carolina requires coverage for employers with 4 or more employees.

In both states, workers’ compensation is a program of no-fault insurance. That means that if you’re injured on the job, you don’t have to prove your employer was at fault. Usually, your employer will purchase workers’ compensation. However, your employer can self-insure if they satisfy certain stringent requirements.

Employer obligations

North Carolina imposes penalties on employers who fail to provide the required workers’ compensation benefits.

The North Carolina Industrial Commission imposes a fine of $1 per employee per day on non-complying employers, but not less than $50 per day or more than $100 per day. So a non-complying employer faces a civil fine between $18,250 and $36,500 per year if they don’t carry workers’ compensation insurance for their employees, even if there are no workplace injuries.

If it’s found that an employer “willfully fails” to carry required coverage, they can also be charged with a Class H felony. An employer who simply “neglects” to provide required coverage can be charged with a Class 1 misdemeanor.

South Carolina, on the other hand, does not have definitive statutory penalties or a set fee for failure to provide workers’ compensation coverage. Failure to carry coverage is also not a criminal offense.

Instead, South Carolina law allows the Department of Revenue to sue the employer to collect any damages an injured employee is entitled to. The Department can put a lien on the non-compliant employer’s assets, which cannot be discharged by the employer’s bankruptcy.

All of this means that if you work in North or South Carolina, your employer is likely to carry workers’ compensation insurance that entitles you to benefits if you’re injured at work.

Workers’ compensation benefits for injured workers

South Carolina and North Carolina laws provide virtually the same worker’s compensation benefits. These include:

• Money for medical and rehabilitation treatments
• Weekly payments of up to two-thirds of your average weekly wage
• Partial and total disability benefits
• Compensation for amputation and disfigurement
• Death benefits which are payable to your dependents

In both states, you are required to see a physician who is authorized by a workers’ compensation administrator.

What to do if you are hurt at work as an undocumented worker

As soon as you experience an injury on the job, immediately consult an experienced workers’ compensation lawyer who can help you, while taking into account your immigration status.

You are required to file an accident report with your employer within 30 days of the accident. Before you do that, see a lawyer who can speak with you regarding any fears you may have of deportation retaliation from your employer.

Your employer’s insurance company is prohibited from asking about your immigration status.

Your employer can fire you if they discover your immigration status. However, bear in mind that if an employer was previously aware of your status, they could be in trouble for violating certain laws if they report your status after you become injured.

Your lawyer can answer your questions and advise you of your rights and risks associated with filing a claim. Please do not give up on filing a claim before getting valuable advice from a qualified lawyer. You are entitled to the same rights as any other employee.

Alternative remedies

If you are an injured employee of a non-insured employer, you may be able to sue your employer in a civil action. Likewise, if you are concerned about your immigration status or employer retaliation, discuss this with your lawyer.

If you’re an undocumented worker in North or South Carolina who’s been injured on the job, contact the experienced lawyers at Wilder Pantazis Law Group in Charlotte today. We speak Spanish, and we can help you understand your rights and get you the compensation you need.