Michigan suit is challenging denial of lost wages for injured undocumented immigrants

Lupita, who asked we use her middle name, was hurt while working. She is an undocumented immigrant.

Michelle Jokisch Polo/WKAR

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Michelle Jokisch Polo/WKAR

At 47 years old, Lupita never thought she’d find herself unable to walk without experiencing intense pain. Four years ago, Lupita was working a shift at her job at a sawmill in Michigan and twisted her ankle while carrying a large air pressure hose down a platform.

“I told my shift leader that I fell and I twisted my ankle and was in a lot of pain,” said Lupita, who asked that she be identified only by her middle name because of her immigration status.

Lupita is one of over 50,000 undocumented immigrants who aren’t eligible to access worker’s compensation solely because they lack authorization to work legally in the United States, according to a lawsuit filed in 2019 against the state of Michigan.

The lawsuit was filed on behalf of the nonprofit organization Michigan Immigrant Rights Center and contends the organization’s resources are being depleted by the volume of injured undocumented workers seeking legal assistance. Every year, the nonprofit takes on more than 1,500 cases like these.

“They have to use resources, to meet, talk, explain the law,” said attorney John Philo from the Sugar Law Center for Economic and Social Justice. “But also to try and help them out… if there’s a dispute on the medical bills to help them with the medical coverage.”

While a Michigan Court of Claims judge ruled in favor of undocumented immigrants in 2022, a state court of appeals unanimously overturned that ruling last month. The appeals court said in its opinion that the organization missed the one-year deadline to file its complaint.

The state’s argument focuses on Governor Gretchen Whitmer’s responsibility over the law. They contend that she lacks the authority to alter the law, suggesting instead that the nonprofit focus on advocating for legislative changes.

“She has no role in deciding worker’s compensation cases so I do not understand how they can maintain a claim against her for allegedly misapplying the Worker’s Compensation Statute,” said Assistant Attorney General Jason Hawkins added at a Michigan Court of Appeals hearing in May.

The Michigan Immigrant Rights Center is now bringing the lawsuit to the State Supreme Court, asserting that the ongoing strain on the center merits continued legal action.

“What’s happening currently, is that when undocumented folks get injured, they may get their medical covered, but they will not get any wage loss covered,” said attorney Philo.

In Michigan, all employers are required to cover the costs of medical care for an employee injured at work regardless of the person’s legal status. While employers are paying for worker’s compensation insurance paid on behalf of all their employees they are not required to pay for the lost wages of undocumented workers.

Michigan business advocates say the burden of paying for the wages of undocumented injured workers shouldn’t fall on employers.

“If someone is knowingly falsifying documents to gain lawful employment they were never there legally to begin with,” said Michigan Chamber of Commerce Senior Vice President of Business Advocacy. “And it becomes a question of whether or not the employer should be forced to pay wage loss benefits and to replace wages that shouldn’t have been paid in the first place.”

Even though federal law protects the rights of undocumented workers it doesn’t guarantee access to lost wages if they are hurt on the job, leaving it up to individual states to decide.

While most states grant these workers the right to worker’s compensation, Michigan and Wyoming stand out for denying such benefits based on a person’s immigration status.

According to the Pew Research Center, an estimated 7.6 million undocumented workers reside in the United States. They frequently earn low wages and lack access to unemployment insurance and other social safety nets.

“Undocumented migrants tend to cluster not only in unstable jobs, with fewer opportunities for growth, but also in kinds of jobs that are physically demanding that put them in harm’s way,” said Matthew Hall, a demographer at Cornell University whose research focuses on immigration, racial/ethnic inequality and population change.

When Lupita first was injured her employer paid for her medical expenses for one year and gave her a portion of her wages during that time, but because she’s undocumented she doesn’t qualify for long term loss of wages.

Despite undergoing months of physical therapy and a surgery, Lupita still experiences pain and can only stand for short periods. Her doctors are now recommending another surgery, but her employer has stopped paying for her care and medical bills have started to pile up.

“This process has worn me down mentally, morally and physically,” said Lupita. “Because whenever one knocks on a door as an undocumented person, there’s always a closed door.”

Lupita is not working anymore and is relying on her husband and two daughters to make ends meet. She’s hoping the Michigan Supreme Court will rule in favor of undocumented immigrants so that others don’t have to face the same thing.