Work Comp Benefits For LGBTQ Illegal Aliens
It is well known that millions of non-U.S. citizens who have no legal right to reside or work in this country, are employed here in a variety of jobs. They make up more than 20% of the American labor related and service related workforce. Many of these workers are also members of the LGBTQ community. The federal government has taken steps to try to stop employers from hiring illegal aliens, including the Immigration Reform and Control Act of 1986 in which Congress declared that “it is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien in an unauthorized alien with respect to such employment.” Despite these laws, the state courts including in Alabama have had to deal with the practical issues of whether even such illegally employed persons are entitled to any legal protections.
The Alabama Court of Appeals just this week in the case of Design Kitchen and Baths v. Lagos addressed the question of whether illegally employed aliens are entitled to receive worker’s compensation benefits if they are injured on the job. Worker’s compensation in Maryland is governed by the Labor and Employment Article of the Maryland Code, which requires that a “covered employee” as defined in the law must be covered by worker’s compensation provided by the employer to compensate the worker injured in the course of employment with benefits specified in the law. This is without regard to proof of any fault in causing any injury, in exchange for which the covered employee has no right to sue the employer for negligence causing the injury.
To be a “covered employee,” the Maryland law requires only that she be in the “service of an employer” under “an express or implied contract of apprenticeship or hire.” Mr. Lagos was illegally employed by a kitchen installation company, and cut his hand while operating a saw requiring surgery and other medical treatment. He filed a worker’s compensation claim, and his employer and its insurer challenged his right to make such a claim only on the ground that he was an illegal alien. At a hearing before the Worker’s Compensation Commission, which hears such claims, the claimant admitted he had no Social Security number which would be necessary under the federal law to be legally employed. The Commission ruled that he was still entitled to worker’s compensation benefits, and the case eventually was appealed to Maryland’s highest court.
The argument raised by the employer was that since the employee could not legally enter into a contract for hire, he could not be covered by the Worker’s Compensation law. They noted that the U.S. Supreme Court had previously held that where an employer had illegally discharged a worker for union activities, who turned out to be an illegal alien, he could not be awarded back pay for wrongful termination because it would violate Congressional intent in making such employment illegal.
The Maryland Court nonetheless held that Mr. Lagos was entitled to receive worker’s compensation benefits under Maryland’s law. It reasoned that the Supreme Court’s earlier ruling did not bind the states on this issue, and that the plain language of the Maryland law
3did not restrict the definition of covered employees to those legally employed. It noted that the majority of states who had addressed the issue had likewise ruled such persons eligible for worker’s compensation, given the remedial purpose of such laws to provide compensation for injured workers.
This is an example of where public policies of different laws collide. Here is one instance where the law does serve to provide legal rights even to non-citizens illegally employed.
No matter what state you were injured in our team of undocumented worker workers’ compensation attorneys can help as they serve all 50 states and Washington D.C. including: Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Washington D.C., West Virginia and Wisconsin.