The Women's Journal

Delaware Workers’ Compensation Rights Protect Undocumented Workers, Too!

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By Heather A. Long, Esq.

With the approaching presidential election, the issue of immigration has been a hot topic.  So let’s take a look at the rights of undocumented workers injured while employed in Delaware.

Employees, both documented and undocumented, are susceptible to getting injured on the job.  Workers who are injured on the job are generally eligible for workers’ compensation benefits in Delaware; this includes undocumented workers. Recently, the temperature towards undocumented workers has taken a favorable turn in Delaware decisions from the Department of Labor.

In order for an employer to prove its case that an injured worker is capable of returning to work, the employer must present evidence showing that there are regular employment opportunities available within the employee’s capabilities.   This is often done by way of a labor market survey which is a report prepared by an expert showing local jobs currently open that the employee is capable of performing or securing.

Recently, one employer tried to terminate an employee’s disability wage benefits by arguing that the employee was capable of returning to work. The employer offered a labor market survey showing that there were jobs available within the employee’s capabilities.  However, the employee was an undocumented worker. The jobs that the employer offered to the Board as “within the employee’s capabilities” failed to consider whether the employee was required to be documented as a condition of employment. The employer went on to argue that because they hired the employee without looking into their immigration status, other employers likely would as well, so immigration status should not matter.

The Department of Labor did not agree. Rather, the Board decided that immigration status is a relevant and appropriate factor to consider when determining whether an employee is capable of performing or securing a job. Thus, in order for the employer to prove there were jobs available within the employee’s capabilities, the employer must offer available jobs that consider the immigration status of the employee.  In other words, while it may make it more difficult for the employer to prove that there are available jobs depending on the immigration status of the employee, that is the employer’s problem and not something that should fall onto the employee’s shoulders.

Undocumented workers often don’t know where to turn or what effect their immigration status has on their workers compensation rights. An attorney skilled in these types of cases can explain all of the benefits that are due to you and will fight to make sure you receive those rights. All of the lawyers in my firm, including myself, offer free consultations for work injuries. Don’t let your status as an undocumented worker preclude you from getting the rights you are entitled to.


Excellent Lawyer — 5.0 stars

“Heather has been amazing throughout this entire ordeal. When I thought I had no options, I came into contact with Heather and she not only took on my case when others wouldn’t, she handled it professionally and was honest and reassuring with me.”
~ Michelle

The Best Lawyer in Delaware — 5.0 stars

“Heather Long kept her word. When I thought I was ready to give up, she said she would make them pay or take my case for free. Ms. Long got me into the right therapy and made sure that I was taking care of myself while filing paperwork and taking over my case. My case is still ongoing but let me say Ms. Long is holding my hand each day. I love her and her assistant, they really know how to make you feel like they’re there.” ~ Stephanie

Heather has been an attorney for over six years, and is currently practicing Workers’ Compensation and Personal Injury Law at Kimmel, Carter, Roman & Peltz, P.A. with offices in Newark and Wilmington. Heather worked her way through law school as a paralegal in a personal injury firm. After passing the bar exam, she spent several years working as a defense attorney, representing local, regional and national companies. With the knowledge gained about the inner-workings of these companies, she now represents injured workers and personal injury plaintiffs.  

Heather is a graduate of Widener University School of Law, and the University of Nebraska- Lincoln. Prior to attending law school, she was licensed as a paramedic and spent time volunteering for her local ambulance corps. She is also active as a mock trial coach for Salesianum High School.

Heather is licensed to practice law in Delaware, Pennsylvania and New Jersey.

For more information, or to schedule a free consultation, please call (302) 565-6132 or email her directly at [email protected].