E-Alerts & Press Releases

Court of Appeals Rules Undocumented Workers Are Covered by Workers Compensation for Injuries on Job

September 12, 2005: Diego E. Lagos, a carpenter’s helper, injured his hand while using a machine at work.  His employer and his employer’s insurer, both defendants in the case, refused to pay workers compensation benefits, solely on that Mr. Lagos was an undocumented immigrant.  The PJC joined the case when it reached the Court of Appeals by filing an amicus curiae brief.
On September 12, 2005, the Maryland Court of Appeals held that undocumented workers are "covered employees" under the Maryland Workers’ Compensation Act, and that federal immigration law does not preempt the application of the Maryland Act to undocumented workers. The opinion in the case, Design Kitchen & Baths, et al. v. Lagos, No. 82 (Sept. 12, 2005), makes clear that the PJC was influential in the decision: “We agree with amici, . . . that the Legislature, more than thirty (30) years ago, by enacting legislation that included the phrase, ‘whether lawfully or unlawfully employed,’ manifested an intention that even unlawfully employed workers be ‘covered employees’ in the workers’ compensation system.”  The Court also relied on the PJC brief to refute the employer's argument that the Workers Compensation statute is silent concerning whether undocumented aliens can qualify as covered employees:

'The statute is “silent” on this questions to precisely the same extent that it is “silent”  on the question of whether, for example, women or individuals who are left-handed, can qualify as ‘covered employees’ – that is to say, not at all.  Undocumented immigrants, women, and left-handed people are all “covered employees”’ if they are “in the service of an employer under an express or implied contract of apprenticeship or hire.”

The opinion noted with approval the amicus argument that the employer’s argument would have permitted unscrupulous employers to “take advantage of this class of persons and engage in unsafe practices with no fear of retribution, secure in the knowledge that society would have to bear the costs of caring for these injured workers.”

Congratulations to PJC's  former Murnaghan Appellate Advocacy Fellow Josh Auerbach who was the lead writer of the PJC amicus brief arguing these issues, joined by the National Employment Law Project and the National Immigration Law Center.
A Daily Record article on this case, in which PJC Legal Director Debra Gardner is quoted, follows.

Illegal alien entitled to benefits

September 13, 2005
Daily Record Assistant Legal Editor

A manual laborer who injured his hand while in the employ of a home remodeling company is entitled to receive workers’ compensation benefits under state law — even though he was working in the country illegally, the state’s highest court held yesterday.

Case: Design Kitchen and Baths et al. v. Lagos, CA No. 82, Sept. Term 2003. Reported. Opinion by Bell, C.J.; Dissent by Harrell, J. Filed Sept. 12, 2005.
Issue: Was an undocumented illegal alien entitled to workers’ compensation benefits where he injured his hand while working for a home remodeling company?

Holding: Yes; affirmed. An undocumented worker injured in the course of his employment is a ‘covered employee’ under LE §9-202 and is eligible to receive workers’ compensation benefits.

Counsel: James R. Forrester for appellants; Luis R. S. Simmons for appellee.
RecordFax: 5-0912-20 (31 pages)

The Court of Appeals agreed that Diego E. Lagos was a “covered employee” under §9-202 of the Labor and Employment Article — and eligible to receive benefits for his temporary total disability — despite his status as an undocumented illegal alien.

“The court essentially said that the statute did not exclude an undocumented worker,” Silver Spring lawyer Luiz R.S. Simmons, who represented Lagos, said yesterday. “The plain language is very clear, and nothing in the legislative history suggested that the legislature intended to exclude undocumented aliens from the protections of workers’ compensation.”

While there are many who believe that extending workers’ compensation to aliens aids illegal immigration, public policy actually favors the extension, Simmons said.

“If you don’t require workers’ compensation for all workers, you give unscrupulous employers a huge incentive to hire undocumented aliens,” he said, adding that it is often foreigners who work on the tops of scaffolding and at other high-risk jobs, because they are the ones who are willing to do it. “These are the people who get the traumatic injuries. If you don’t have workers’ compensation, that’s who they’re going to hire.”

Debra L. Gardner of the Public Justice Center — which filed an amicus brief in the case — noted that if Lagos was not given workers’ compensation, he would have retained the right to sue in tort.

“It wouldn’t take more than a few tort judgments for employers to realize that they would rather have workers’ compensation than not,” she observed.

But James R. Forrester, who represented the now-defunct Design Kitchen and Baths and its insurer Princeton Insurance Co., said he was troubled by some of the implications of the case. Forrester noted that an employer may be required, as part of workers’ compensation, to aid in job placement or training for a worker who must be rehabilitated.

“How can I hire a vocational rehabilitation company and say, go get this person a job, when that person may not be entitled to work here?” he said. “Some of the ramifications of this decision have not even been seen yet.”

Plain and simple

Lagos, a worker from Argentina, was injured in August 2001 while working with a table saw at the Olney home remodeling company. The injury required several surgeries.

The Workers’ Compensation Commission found his claim was compensable under the Maryland Workers’ Compensation Act despite his undocumented status, declaring him to be temporarily totally disabled for one month.

The Montgomery County Circuit Court agreed — as did the Court of Appeals, which took the case before proceedings in the intermediate appellate court.

“The statute plainly and simply states that … a ‘covered employee’ is characterized by two elements: he or she, pursuant to an ‘express or implied contract of apprenticeship or hire’ is ‘in the service of an employer,’” Chief Judge Robert M. Bell wrote for the court.

Lagos “clearly qualifies on both accounts,” he added.

Judge Glenn T. Harrell dissented, pointing out that subsection (b) of 9-202 provides that minors are covered employees even if employed unlawfully.

“The majority’s construction, in effect, revises the plain language of [the statute] to state that both minors and adults may be covered employees even if employed unlawfully,” he wrote.

The court rejected the argument that the Supreme Court’s 2002 decision in Hoffman Plastic Compounds Inc. v. NLRB — prohibiting backpay for an illegal alien fired for participating in a union organizing campaign — required a contrary result. It joins 10 other states that have rejected the same argument since Hoffman was decided in 2002, according to Rebecca Smith of the National Employment Law Project, which also filed an amicus brief in the case.

“Hoffman doesn’t mean you’re not covered under workers’ compensation law,” Smith noted. The court further rejected the contention the authority of states to award workers’ compensation benefits was preempted or precluded by the Immigration Reform and Control Act of 1986 prohibiting the employment of illegal aliens.

The PJC’s Gardner noted that Maryland workers will all have the same access to remedies, whether they are lawfully here or not.

“If you’re a Maryland employer and someone is injured while working for you, you’re not going to be able to kick them to the curb and say, federal immigration law doesn’t owe you anything,” she said.

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