It is well established the federal law prohibits an employer from employing a person who is not a U.S. Citizen or permanent resident, does not have a valid work visa or is otherwise undocumented. This means it is unlawful to employ an undocumented person. This had led to the question of whether undocumented persons who are injured while working unlawfully, are entitled to compensation for injuries.
In 2001, the Nevada Supreme Court (“Court”) held the Federal Immigration Reform and Control Act (“IRCA”) preempts Nevada’s workers compensation laws which would otherwise provide undocumented persons with employment within the United States.i In Tarango v. State Induc. Ins. Sys., the Court further held undocumented persons were not entitled to vocational training which would “only be available … because of [the worker’s] undocumented status.”ii However, in the same case, the Nevada Supreme Court affirmed an award of permanent partial disability benefits to an undocumented worker.iii
In Associated Risk Management v. Manuel Ibanez,iv the Court had occasion to review an award of permanent disability benefits to an undocumented worker and consider whether monetary benefits paid by an employer conflict with federal law or undermine the legislature’s intent. In Associated Risk Management, the Court reaffirmed undocumented workers who are injured while working for a Nevada employer may be eligible for monetary disability benefits.v
Associated Risk Management case involved an undocumented Nevadan, Manuel Ibanez (“Ibanez”), who sustained injuries to his head, shoulder, and back while working at a construction site. As Ibanez’s injuries were debilitating, he applied for permanent total disability (“PTD”) status. Appellant Association Risk Management’s (“ARM”) insurance administrator denied Ibanez’s request based in part on Ibanez’s lack of a valid work visa. However, an appeals officer reversed the decision, finding Ibanez’s lack of a valid work visa was not relevant to the determination of PTD status. ARM appealed the appeals officer’s decision, arguing the appeals officer committed legal error in granting PTD to an undocumented person.vi
The Court noted Nevada’s industrial system covers “every person in the service of an employer. . .whether lawfully or unlawfully employed,” included undocumented persons.vii The Court noted when a status is clear and ambiguous, the Court will give effect to the plain and ordinary meaning of the words.viii Based on this, the Court noted NRS 616A.105(1) clearly covers undocumented persons as the plain language of the statute includes undocumented persons.
The Court also noted although the IRCA prohibits an employer from knowingly employing an undocumented person, the IRCA says nothing about paying an undocumented person benefits which compensate for an injury.ix The Court therefore found there is no conflict with federal law when an insurer pays compensatory benefits, and further, the benefits are available to any worker lawfully or unlawfully employed.x Thus, the Court affirmed the decision of the appeals officer granting PTD to Ibanez. The Court noted Nevada’s worker’s compensation status clearly and unambiguously protects every person, in the service of an employer, lawfully or unlawfully employed, including undocumented persons.xi With this decision, the Court clarified although federal law prohibits employers from knowingly employing an undocumented person, if an undocumented person becomes injured on the job, that person may apply for and receive compensation for their injuries.
With the Associated Risk Management decision, the Court clarified that although federal law prohibits employers from knowingly employment an undocumented person, if an undocumented person becomes injured on the job, that person may apply for an receive compensation for their injuries. This means that if a company or organization in Nevada employs an undocumented person, that person is entitled to seek worker’s compensation benefits if that person becomes injured while working. Employers and insurance companies are not allowed to deny an undocumented person worker’s compensation benefits solely because of their undocumented status.
i See Tarango v. State Induc. Ins. Sys., 117 Nev. 444, 448-50 (Nev. 2001).
ii Id. at 456-457
iii Id. at 456-457
iv 136 Nev. Adv. Op. 91 (Nev. Dec. 31, 2020)
vii See NRS 616A.105(1)
viii Associated Risk Management, 136 Nev. Adv. Op. 91 at 5
ix Associated Risk Management, 136 Nev. Adv. Op. 91 at 6-7
x Associated Risk Management, 136 Nev. Adv. Op. 91 at 7
xi Associated Risk Management, 136 Nev. Adv. Op. 91 at 8