A Tennessee appellate court has held that an undocumented worker has standing to pursue a retaliatory discharge claim against an employer in spite of the fact that he or she may not be able to return to any job at all. Quoting Larson’s Workers’ Compensation Law, § 66.03 to the effect that undocumented workers/unauthorized aliens may generally file injury claims under state workers’ compensation laws, the court considered, but dismissed two employer arguments. First, that Tennessee case law requires a worker to be capable of performing his job in order to maintain a cause of action for retaliatory discharge; and because the worker here could not legally do this, he should be precluded from bringing a claim. Second, that the legislature had expressed a clear policy that unauthorized aliens are prohibited from employment and to permit aliens to bring retaliatory discharge claims flies counter to those policy goals. The court reasoned that a retaliatory discharge cause of action was created, not to protect the right to work, but rather to prevent a chilling effect on employees asserting their rights under the Tennessee Workers' Compensation Act. Accordingly, the undocumented worker had standing to bring the civil action against the former employer.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.
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See Torres v. Precision Indus., 2014 Tenn. App. LEXIS 470 (Aug. 5, 2014) [2014 Tenn. App. LEXIS 470 (Aug. 5, 2014)]
See generally Larson’s Workers’ Compensation Law, §§ 66.03, 104.07 [66.03, 104.07]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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