Worker’s Compensation and the Undocumented Worker

Worker’s Compensation and the Undocumented Worker Alfredo J. Antezana, Esq Antezana & Antezana, LLC

Overview • Counseling a Spanish Speaking Client • Design Kitchen v. Lagos • Medical Concerns to the Spanish Community

Counseling a Spanish Speaking Client • Representation means more than being a counselor • No Pain and Suffering in Worker’s Compensation • Checks delivered to office

Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations Bd.535 U.S. 137 (2002) • FACTS • An employer terminated an employee, who was undocumented, for engaging in pro union activities. • The discharged worker filed suit for back pay. • The employer argued that the discharged employee was not entitled to back pay because he was undocumented.

Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations Bd.535 U.S. 137 (2002) • 5 to 4 Decision • The Supreme Court held that an undocumented worker had no right to recover wages under a federal statute because it conflicts with immigration laws

What is an undocumented worker? • An individual who does not have “a valid social security account number card” under 8 U.S.C. §1324a(b)(C)(i)

Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 2005 • FACTS • Lagos injured his left hand while operating a saw under the employment of Design Kitchen and Baths • The injury required medical treatment, including 2 surgical procedures • A Worker’s Compensation claim was filed

Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 2005 • Issues Raised at the hearing level by the employer/insurance company: • Accidental injury • Causal relationship • AWW • Proper insurer • Undocumented worker

Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 2005 • Issues for the Court of Appeals • Does the undocumented worker have worker’s compensation rights?

Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 2005 • 6 to 1 Decision • Undocumented workers are covered employees under the Act and are eligible to receive worker’s compensation benefits

Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 2005 • Clear language of the statute • Legislative History • Purpose of the Act • Public Policy

Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 2005Statute Language • The Court agreed that §9-202 is not ambiguous • The clear and unambiguous language of §9-202 encompasses undocumented aliens • The statute provides a “covered employee is characterized by two elements: an express/implied contract of hire and is in service of an employer.”

Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 2005Legislative History • §21 defined a covered employee as “every person…whether lawfully or unlawfully employed” • Revisions of §21, now §9-202, were intended to be made “without substantive change”

Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 2005Purpose of the Act • “to protect employees, employers, and the public alike.”

Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 2005Public Policy • If no coverage under statute then no relief for injuries OR sue in tort • Encourage a safe work environment with no fear of retribution

Undocumented workers are entitled to all benefits except voc rehab (status quo) Undocumented workers are entitled to all benefits since they are covered employees per the Court of Appeals Design Kitchen v. LagosCourt of Appeals of MD – Filed Sept. 12, 20052 Interpretations

Medical Concerns • The need for a Spanish speaking doctor • The impact of Chiropractic care • The cultural belief of 100% recovery • The inability to provide proper medical history to doctors

Any Questions

Worker’s Compensation and the Undocumented Worker