Maryland Bar Bulletin
Publications : Bar Bulletin : August 2009


An illegal alien cannot be employed in the United States, according to Federal statute, 8 U.S.C. §1324a, and the Immigration Reform and Control Act of 1986 (IRCA). However, state workers’ compensation laws preempt IRCA allowing illegal aliens in Maryland to be eligible for workers’ compensation benefits.

The Maryland Court of Appeals held that undocumented alien workers are entitled to workers’ compensation benefits in the 2005case Design Kitchen and Baths v. Lagos. In Lagos, Diego Lagos, an undocumented alien worker for Design Kitchen and Baths, sustained an injury to his left hand while operating a saw.

Lagos filed a workers’ compensation claim based on his work-related injury. The Workers’ Compensation Commission (Commission) found that Lagos suffered an accidental injury arising out of and in the course of employment and that his disability was the result of an accidental injury. The employer/insurance company filed a petition for judicial review in the Circuit Court for Montgomery County and subsequently filed a motion for summary judgment based on Lagos’ undocumented alien status. Lagos cross-moved for summary judgment, which was granted, and the case was remanded to the Commission. The employer/insurer timely noted an appeal. Prior to review by the Court of Special Appeals, the Maryland Court of Appeals granted certiorari on its own motion to consider whether an undocumented alien’s status affects his eligibility to receive workers’ compensation benefits under the Workers’ Compensation Act.

First,the Court addressed whether the undocumented alien, Lagos, was a covered employee under Md. Code, §9-202 of the Labor and Employment Article, which states:

(a) In general – Except as otherwise provided, an individual, including a minor is a covered employee while in the service of an employer under an express or implied contract of apprenticeship or hire.

(b)  Unlawful employment – Minors – A minor may be a covered employee under this section even if the minor is employed unlawfully.

To determine whether undocumented aliens are covered employees, the Court turned to the legislative history of the above statute. Here, the Court found that Md. Code (1957, 1964 Replacement Volume, 1971 Cum. Supp.), Art. 101, § 21(b)(1) provided that a covered employee is every person under eighteen years of age, whether lawfully or unlawfully employed. The Court held that the phrase lawfully or unlawfully employed was omitted from the new statute because it was surplusage and the new language derived without substantive change from former Art. 101, § 21(b)(1). Hence, undocumented aliens are covered employees under the statute, according to the Court.

Further, the Court noted public policy reasons for including undocumented alien workers as covered employees under the statute. According to the Court, undocumented aliens would only have the option to sue in tort or otherwise have no relief if excluded as covered employees, which would encourage unscrupulous employers to take advantage of undocumented aliens and engage in unsafe practices with no fear of punishment. The Court discovered that only one state, Wyoming, excluded undocumented workers as covered employees. Wyoming excludes undocumented workers because its statute specifically states that covered employees are aliens authorized by the Department of Justice and the Immigration and Naturalization Service to work in the United States. All other states addressing the issue found illegal aliens to be covered employees.

Second, the Court of Appeals addressed the issue of whether state workers’ compensation laws preempted IRCA. The Court adopted the views of sister states, which held that the Immigration Reform Act itself does not give indication that Congress intended it to preempt state laws whenever state laws operate to benefit undocumented aliens.

On the other hand, illegal aliens are not entitled to all benefits relating to employment. In the United States Supreme Court case Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, the Supreme Court held that an illegal alien is not entitled to back pay in a wrongful termination lawsuit. In Hoffman, an undocumented worker was terminated for participating in pro-union activities. The National Labor Relations Board (NLRB) awarded the undocumented alien back pay for the employer’s wrongful termination. However, the U.S. Supreme Court reversed the NLRB’s decision and concluded that Congress did not intend that back pay be paid to an employee where an alien-employee would have continued to work and live in the United States illegally but for an employer’s unfair labor practices.

In the spirit of Hoffman, undocumented aliens in Maryland are not entitled to Vocational Rehabilitation services. Vocational Rehabilitation services are professional services reasonably necessary during or after or both during and after medical treatment to enable a disabled covered employee, as soon as practical, to secure suitable gainful employment, pursuant to Md. Code, §9-670 of the Labor and Employment Article.

In conclusion, if your client suffers a work-related injury, his or her immigration status is no bar to receiving Maryland workers’ compensation benefits.

Sharon R. Harvey is a member of the MSBA Immigration Law Section and serves on the Immigration Law Section Council.

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