Knowledge is Power: Immigrants' Rights Under the Massachusetts Workers' Compensation Statute

All employees in Massachusetts are eligible to receive workers’ compensation benefits if they are injured on the job. This includes all immigrants, both documented and undocumented.   Unfortunately, it is not uncommon for an unscrupulous employer to try to deny an unknowing immigrant his/her rights, particularly if the immigrant is undocumented. This article is designed to help you protect yourself before trouble occurs.

Step 1 - Understanding the Nature of Workers ’ Compensation

The workers’ compensation system was created by the Massachusetts legislature in 1911 to address the difficulties faced by employees who became injured on the job. The system represents a compromise: disabled workers are provided with disability benefits and medical coverage without having to prove that their employer was at fault, but those workers give up their rights to sue their employers for negligence. Whereas litigation in court usually takes years, an injured worker can receive workers ’ compensation benefits in a matter of months. Rather than looking to a judge or jury to award damages, workers ’ compensation benefits are established by law. In workers ’ compensation, there is no recovery for pain and suffering and loss of function benefits are limited.

Step 2 - Understanding Your Employer ’s Responsibility

All employers in Massachusetts must have workers’ compensation insurance. They are also required to post a sign informing you of the name and address of their insurance company and your right to medical treatment. The insurance company can direct you to a particular doctor or medical facility for your initial visit. Thereafter, you are entitled to choose your own doctor.  

If your employer does not post a sign letting you know the name of its insurance company, you can file an inquiry with the Department of Industrial Accidents. To do so, however, you must know the name and address of your employer. Thus, do not just follow your friend onto the job site. As soon as you get a job, even if it is only for one day, write down the name of the person or company for whom you are working. Get as much information as possible, including last names.

Step 3 - Proving That You Are An Employee

To qualify for workers’ compensation benefits, you must be considered an “ employee.” Except for certain specified exceptions, the statute defines an “ employee ” as “ any person in the service of another. ” M.G.L. c. 152, § 1(4). In my work with the immigrant community, I have encountered situations in which the employer claimed that he never even heard of the injured worker, much less hired him/her. You can, however, protect yourself in advance by making sure that you can document that you did indeed work for this employer. Take pictures of yourself on the job site, write down the names and addresses of your co-workers, save telephone messages from your employer, make photocopies of your paychecks.

 

Another problem that my clients sometime face is an employer that tries to argue that the injured worker was an independent contractor, not an employee. In general, the test is whether the company or person for whom you are working exercises direct control over your activities and provides the tools for you to perform the work. For example, if I hire a mason to rebuild my front steps, he or she will usually be considered an independent contractor because I am not in control of how he/she performs the job. If, however, I have a masonry business and I hire someone to work on my crew, that person is likely to qualify as an employee because he/she will be under my direct supervision and using my tools.

Step 4 - Establishing Your Earnings

Workers’ compensation benefits are based upon your “average weekly wage,” the amount that you earned in the fifty-two weeks prior to the time that you got hurt. The problem for many immigrants is that their employers do not provide them with the necessary documentation of their earnings.   Worse, some employers represent that they paid their workers much less than they actually did.   Under Massachusetts law, you must be provided with a pay stub showing the gross amount that you earned each week. You are also entitled to receive time and a half for working more than forty hours a week. Frequently, however, my immigrant clients explain that they are paid in cash or that they receive a check for the first forty hours and cash for the remainder.It is, however, possible to establish the necessary “paper trail” to prove how much you actually earned. If you receive pay stubs, save them. If you are paid in cash, write down how much you are paid each week. Then, deposit the money in a bank account and make a withdrawal. A pattern of weekly or biweekly deposits can be persuasive in case of a dispute. Similarly, if you are paid by both a check and in cash, deposit the cash with the check. Again, this will show a pattern of earnings that can be used to convince a judge to believe your testimony on the issue of how much you actually earned. Of course, once you have made these deposits, keep the monthly statements that the bank sends to you.

Step 5 - Telling The Truth To The Doctors

Credibility is an important consideration in whether or not a judge will award benefits to an employee making a workers ’ compensation claim. The records of an employee’s first hospital or doctor’s visit following his/her injury can be very important in establishing credibility. Thus, do not be misled by an employer who instructs you to tell the doctor that you had an accident outside of work. That employer is probably attempting to avoid his responsibilities. If you were hurt at work, let the medical personnel who first treat you know. If necessary, ask that you be alone with the doctor; your employer does not have to be with you while you are examined.

Conclusion

Workers’ compensation is a fairly complicated area of law and this article only scratches the surface. As the saying goes, however, “knowledge is power.” As an employee in Massachusetts, you are eligible for benefits if you are injured on the job. Take steps now to protect those rights - make sure that you know your employer’s name and address, gather proof that you work for that particular person or company and keep records of how much you are paid. Most of all, follow safe practices and try to avoid becoming injured in the first place.