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

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

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

Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations Bd. 535 U.S. 137 (2002) FACTS FACTS An employer terminated an employee, who was undocumented, for engaging in pro union activities.An employer terminated an employee, who was undocumented, for engaging in pro union activities. The discharged worker filed suit for back pay.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.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 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 lawsThe 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) 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. Lagos Court of Appeals of MD – Filed Sept. 12, 2005 FACTS FACTS Lagos injured his left hand while operating a saw under the employment of Design Kitchen and BathsLagos injured his left hand while operating a saw under the employment of Design Kitchen and Baths The injury required medical treatment, including 2 surgical proceduresThe injury required medical treatment, including 2 surgical procedures A Worker’s Compensation claim was filedA Worker’s Compensation claim was filed

Design Kitchen v. Lagos Court of Appeals of MD – Filed Sept. 12, 2005 Issues Raised at the hearing level by the employer/insurance company: Issues Raised at the hearing level by the employer/insurance company: Accidental injuryAccidental injury Causal relationshipCausal relationship AWWAWW Proper insurerProper insurer Undocumented workerUndocumented worker

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

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

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

Design Kitchen v. Lagos Court of Appeals of MD – Filed Sept. 12, 2005 Statute Language The Court agreed that §9-202 is not ambiguous The Court agreed that §9-202 is not ambiguous The clear and unambiguous language of §9-202 encompasses undocumented aliens 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.” 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. Lagos Court of Appeals of MD – Filed Sept. 12, 2005 Legislative History §21 defined a covered employee as “every person…whether lawfully or unlawfully employed” §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” Revisions of §21, now §9-202, were intended to be made “without substantive change”

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

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

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

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

Any Questions