Immigration Status Irrelevant under Longshore and Harbor Workers' Compensation Act

In Bollinger Shipyards, Inc v. Director, Office of Worker's Compensation Programs, U.S. Dep't of Labor, the Fifth Circuit upheld the award of workers compensation benefits to an undocumented immigrant worker who was injured on the job as a pipefitter, joining the DC Circuit in holding that immigration status is irrelevant under the LHWCA. The employee had told Bollinger that he was a citizen and gave the company a false social security number. After he was injured on the job, the company paid some of his expenses and benefits but then stopped when it discovered that he was an undocumented immigrant. The primary question on appeal was whether an undocumented worker could be eligible for benefits under the act.

Analyzing the statute and cases from other statutes, the court held that the worker here was an employee within the meaning of the act and thus entitled to benefits. Bollinger argued that because the worker was not legally entitled to work, he could not be entitled to benefits. Here's how the court characterized the company's brief:

Bollinger contends that undocumented immigrants such as Rodriguez are per se ineligible to receive indemnity benefits under the LHWCA, as any such benefits “would be based on illegally obtained wages.” Bollinger reasons that Rodriguez’s injury caused him no loss of wage-earning capacity because he had no legal wage-earning capacity at the time he was injured. Bollinger histrionically compares the BRB’s ruling to “awarding benefits to a drug dealer based on ill-gotten ‘wages,’ [and] then telling the employer that it better find another illegal enterprise for the drug dealer, lest there be found a permanent loss of wage[-]earning capacity.” In the same melodramatic style, Bollinger compares awarding benefits to Rodriguez to “awarding benefits to a pirate or a Mafioso.”

Bollinger relied on the Hoffman Plastics line of NLRB cases, which made this distinction about whether wages could be paid legally in declining to award some types of relief under the NLRA in order to avoid conflict with the immigration laws, which prohibit the employment of aliens who enter or remain in the country illegally and which also criminalizes the use of false documentation to obtain work.

The court distinguished this line of cases for three reasons: (1) Unlike discretionary backpay under the NLRA, workers’ compensation under the LHWCA is a non-discretionary, statutory remedy; (2) unlike the NLRA, the LHWCA is a substitute for tort law, abrogating fault of either the employer or the employee; and (3) awarding death or disability benefits post hoc to an undocumented immigrant under the LHWCA does not “unduly trench upon” the IRCA, as Congress chose to include a provision in the LHWCA expressly authorizing the award of benefits “in the same amount” to nonresident aliens.

The court left open the possibility that an alien who was about to be deported or was sure to be deported might not be eligible for future lost wage benefits calculated as they would be earned in the US.

MM