Fear keeps more injured workers silent than any legal rule does. A worker falls from a ladder in Elmhurst, gets driven home instead of to a hospital, and never reports it, because someone on the crew said a claim would put him on a list.
That advice is wrong, and in New York it has been wrong since 2006. An undocumented worker injured in a construction accident in New York holds rights that do not depend on a Social Security number, a work permit, or a name on a payroll.
Key Takeaways About Injury Rights Regardless of Immigration Status
- The New York Court of Appeals held in 2006 that the Labor Law applies to all workers in qualifying employment situations regardless of immigration status.
- An undocumented worker can generally recover lost wages in a New York injury lawsuit, with a narrow exception where the worker submitted fraudulent documents that actually induced the hiring.
- Workers’ compensation covers undocumented workers in New York, and the statute defining who counts as an employee contains no citizenship requirement.
- Being paid in cash or classified as a contractor does not remove the protections of Labor Law 240, because the statute reaches anyone permitted or suffered to work on a covered site.
- An employer that threatens to report a worker to immigration authorities for asserting Labor Law rights violates New York’s retaliation statute.
- Since 2020, New York law has barred civil arrests at courthouses without a judicial warrant or order.
Key Statistics on Immigrant Construction Workers in New York
- Hispanic or Latino workers made up 35.4 percent of the national construction workforce in 2025, according to BLS labor force data.
- Hispanic or Latino workers accounted for 56 of New York State’s 217 workplace deaths in 2024, roughly 26 percent, per the U.S. Bureau of Labor Statistics.
- Fall protection has been OSHA’s most frequently cited standard for fifteen consecutive years.
- The federal standard, 29 CFR 1926.501, requires protection for any employee working six feet or more above a lower level.
The overlap between those figures is the reason this question matters in Queens and the Bronx more than almost anywhere else in the country.
What Did Balbuena Actually Decide?
In Balbuena v IDR Realty LLC, decided in 2006, the New York Court of Appeals allowed undocumented construction workers to pursue lost wage damages under state law. The Court wrote that the Labor Law “applies to all workers in qualifying employment situations, regardless of immigration status.”
Defendants had argued that federal immigration law, and the U.S. Supreme Court’s decision in Hoffman Plastic Compounds v NLRB, wiped out those claims. The Court rejected that, drawing a line the workers in Balbuena fell on the right side of: neither had submitted false documents to get hired.
Does the Fraudulent Documents Exception Apply to You?
It is narrower than defense lawyers suggest. In 2008 the Appellate Division held in Coque v Wildflower Estates Developers that false documentation bars a lost wage claim only where the submission actually induced the employer to hire the worker.
Where an employer knew or should have known a worker lacked authorization, or never verified anything, the lost wage claim generally survives. Many New York sites hire through a labor broker with no paperwork at all, which cuts against the defense.
A federal appeals court reached the same result in Madeira v Affordable Housing Foundation, upholding a lost earnings award to an undocumented worker who fell from a roof, where it was the employer and not the worker who violated immigration law.
Which Protections Apply on the Job Site?
Labor Law 240 and the Scaffold Law
New York’s strongest workplace safety statute is Labor Law § 240, which requires owners and contractors to furnish proper protection for elevation-related work. Labor Law 240 protections apply to all workers on covered job sites, regardless of immigration status.
The statute imposes a non-delegable duty, and ordinary carelessness by the worker is not a defense, though conduct that is the sole proximate cause of the fall can defeat the claim. Neither analysis turns on paperwork.
Does Being Paid in Cash Change Anything?
Not for the statute’s coverage. Labor Law § 2 defines “employed” to include “permitted or suffered to work,” and New York courts apply a two-part test asking whether the person was permitted or suffered to work on a building or structure and whether they were hired by someone, whether an owner, contractor, or agent.
A day laborer hired by a subcontractor and paid in cash satisfies both. What cash pay does complicate is proof of earnings, which is why tax filings, money transfer records, coworker testimony, and pay records held by a broker matter so much.
Workers’ Compensation
Workers’ compensation is available. The Appellate Division held in Amoah v Mallah Management that a worker’s status as an undocumented immigrant does not, in and of itself, prohibit an award of workers’ compensation benefits, even where false documents were used to get hired.
The New York State Workers’ Compensation Board has publicly stated that it is committed to protecting all workers in New York State, including immigrant workers. One limit exists: benefits tied to participation in a Board-approved vocational rehabilitation program are unavailable to a worker who cannot legally be employed.
Common Problems Injured Workers Face, and How Lawyers Handle Them
The crew is told to say it happened somewhere else. Contractors sometimes reframe a job site fall as a street accident to avoid a Labor Law claim. Witness statements taken early, photographs, and dispatch records are what unwind that.
Nobody wrote an incident report. Absence of paperwork is not absence of proof. Site safety logs, delivery tickets, sign-in sheets, subcontractor daily reports, and text messages regularly establish presence and the mechanics of a fall. Site-safety logs are critical evidence regardless of who was harmed on the job.
A supervisor threatens to call immigration authorities. Labor Law § 215 defines retaliation to include “threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status.” Penalties run from $1,000 to $10,000, with more for repeat violations.
The defense wants to ask about status in a deposition. New York courts often limit or exclude it. The First Department upheld preclusion of immigration status cross-examination where a worker’s injuries left him unable to work at all, so mitigation of damages was not in play.
A 2025 Kings County decision excluded status evidence and noted the risk that public disclosure invites immigration enforcement. These rulings are discretionary rather than automatic, which is why the issue gets briefed early.
Fear of appearing in court. New York’s Protect Our Courts Act, enacted in 2020, provides that a person attending a court proceeding in good faith as a party or potential witness “is privileged from civil arrest while going to, remaining at, and returning from” that proceeding, unless supported by a judicial warrant or judicial order.
Which Deadlines Apply to a New York Construction Injury Claim?
| What is due | Deadline |
| Notice of injury to your employer | 30 days |
| Workers’ compensation claim | 2 years from the accident |
| Notice of claim against a city or public authority | 90 days |
| Third-party personal injury lawsuit | 3 years |
| Wrongful death lawsuit | 2 years from the date of death |
Deadlines vary by defendant and can be much shorter when a public agency owns the project. Confirming yours quickly matters more than getting every detail of the claim right on day one.
What Compensation May Be Available?
Medical treatment, surgery, and rehabilitation come first, followed by lost earnings and reduced earning capacity. A jury may consider immigration status as one factor when calculating future lost wages, including the prospect of removal, so this component requires careful proof.
Pain, permanent limitation, and disfigurement are recoverable in a third-party lawsuit and are never paid by workers’ compensation. Families of workers killed on New York job sites may also bring wrongful death and survival claims.
Practical Steps That Tend to Protect a Claim
Many workers find it helpful to get medical care the same day and tell the provider the injury happened at work, even when the employer discourages it. Saving the site address, the general contractor’s name from the permit board, and photographs of the ladder, scaffold, or opening involved preserves evidence that disappears within days.
Keeping records of pay, whether by app transfer, check stub, or a written log of days and hours, gives a New York construction accident lawyer something concrete to build an earnings claim from. Speaking with an immigration attorney alongside an injury attorney is also worth doing, because the two questions are separate and each needs a real answer.
Questions Injured Workers Ask Attorneys About Status
Will filing a claim put my name in front of immigration authorities?
A civil injury case is a state court matter, and New York law bars civil arrests at courthouses without a judicial warrant or order. No lawyer can control federal enforcement decisions, which is exactly why you should get advice from an immigration attorney about your individual situation before making decisions based on fear.
I used another person’s Social Security number to get hired. Is my case over?
Not necessarily, and it is not something to hide from your own lawyer. The exception applies where the false document actually induced the hiring, and courts have declined to apply it where the employer knew or ignored the worker’s status. Your other damages, including medical care and pain and suffering, are analyzed separately from lost wages.
My husband died on a job site and we were never married on paper. Can I bring a case?
A wrongful death action in New York is brought by the personal representative of the estate for the benefit of the distributees, and who qualifies is decided under New York’s estate law rather than by immigration status. Unmarried partners face real limits, though children usually qualify. This needs an individual review quickly, because the deadline is two years from the date of death.
The contractor offered me cash to stay quiet. Should I take it?
A private payment does not release a claim against the property owner or general contractor, and the amounts offered in these situations are usually a small fraction of what the injury costs over a lifetime. Signing anything, including a paper you cannot read, is worth a phone call to a lawyer first.
The Law Does Not Ask Where You Were Born
A ladder that was not secured does not care about paperwork, and neither does the statute that required someone to secure it. The people who benefit from your silence are the ones who left the site unsafe.
Our New York construction accident lawyers represent all injured workers, and our reported outcomes include a recovery secured for the family of an undocumented laborer fatally injured at a construction site. Prior results do not guarantee a similar outcome. We employ staff and associates fluent in Spanish and several other languages, so you can explain what happened in your own words.
The consultation is free and confidential, and there is no attorney’s fee unless we recover compensation for you. Call (212) 714-1515, our Elmhurst office at (718) 714-1515, or White Plains at (914) 714-1515
