Undocumented employees entitled to workers' comp

Design Kitchen and Baths v. Lagos, Md. Ct. App., No. 82, Sept. 12, 2005.

An undocumented worker injured on the job can collect benefits under the Maryland Workers' Compensation Act, even though he was not legally permitted to be performing the work that led to his injuries, the Maryland Court of Appeals ruled. By this decision, Maryland joins the over-whelming majority of other states that provide workers' compensation benefits to illegal immigrants.

While a carpenter for Design Kitchen and Baths, Diego Lagos sustained serious injuries to his hand, which required two surgical procedures. He filed for and was granted workers' compensation benefits. The company appealed, first to the Maryland Circuit Court and then to the Maryland Court of Appeals (the state's highest court), on the ground that Lagos' status as an illegal immigrant disqualified him from the benefits.

Unlike the workers' compensation laws in some states, the Maryland Workers' Compensation Act does not specifically address whether undocumented workers are entitled to benefits. Instead, the act says an employee is covered as long as he or she is working "under an express or implied contract of apprenticeship or hire."

In disputing Lagos' claim for benefits, the company relied largely on the federal Immigration Reform and Control Act to assert that federal immigration laws prohibit the formation of an employment contract between employers and illegal immigrants. With no contract, Lagos did not fit within the definition of covered employee under the workers' compensation law, according to the company.

The Maryland Court of Appeals rejected the company's argument and upheld the award of workers' compensation benefits to Lagos. The court noted that the Maryland Workers' Compensation Act is a remedial statute and, as such, should be liberally construed in favor of the injured worker.

Moreover, the court determined that it was in the interest of public policy to include undocumented workers under the statute. Without that protection, the court surmised, employers could take advantage of illegal immigrants and subject them to unsafe work conditions without fear of retribution.

BY DECLAN C. LEONARD, AN ATTORNEY WITH THE FIRM OF ALBO & OBLON IN ARLINGTON, VA.

RELATED ARTICLE: Professional Pointer

Once an employee goes on your payroll, there is very little an employer can do to avoid a workers' compensation claim for a qualifying on-the-job injury. The underlying question that received scant attention in this case was how Lagos came to be employed in the first place when he did not have a Social Security number and was not otherwise lawfully permitted to work in this country. It is every employer's responsibility in all states to document the work eligibility of every employee.

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