On Saturday (March 18, 2017), at the ABA Work Comp (WC) Seminar in Phoenix, I presented a paper on workers' compensation rights of undocumented workers. (I was assisted in the project by a talented Pitt Law student, Justin Beck, who is going into the field.)
The paper concludes with a fifty-state table. It is posted at www.davetorrey.info.
As far as I can tell, 32 states now have authority holding that an undocumented worker can be an employee for purposes of WC laws, 1 state has authority to the contrary (Idaho), 18 are officially undecided, and 1 (Wyoming) considers such workers employees if the employer believes the worker was documented. The total is 52, as I am including D.C. and the LHWCA.
Not everyone counts this item quite the same way. The attorney Gary Wickert, long known as a national subrogation expert, has a new online table out (cited in the bibliography), with slightly different results.
The bigger issue, nationwide, is the extent to which such workers are entitled to benefits.
Of special interest was the seminar commentary of the two injured worker lawyers from Phoenix and Tucson who presented along with me. In Arizona, no statute or common law declaration unequivocally exists that an undocumented worker is an employee for WC purposes. The language one of my colleagues used was that the state was “officially neutral” on the issue, and both sides seem to avoid the worker’s immigration status. As many undocumented workers sustain injury in the state, this custom and practice seems quite remarkable.