*1 order to determine whether there is triable issue as to the and, reasonable expectation parties, if necessary, deal further with the issue of Ms. Harkins’s negligence. (RAUSCH), QUESTIONS
IN MISC. 6NO. ANSWERED FORTH, EQUALLY HEREIN AS SET BE COSTS TO (HAR- PARTIES; DIVIDED THE BETWEEN IN NO. MUTUAL), FORD JUDGMENT OF CIRCUIT COURT FOR HARFORD COUNTY AFFIRMED IN PART AND PART; REVERSED IN CASE REMANDED THAT TO COURT FOR FURTHER IN PROCEEDINGS CONFORM- INCLUDING, ANCE WITH THIS OPINION IF NECES- SARY, THE RESOLUTION OF ISSUE OF HARKINS’S NEGLIGENCE; EQUALLY COSTS TO BE DIVIDED BE- TWEEN THE PARTIES.
No. 2003. Appeals Maryland. Court of
Sept. 2005. *3 Semmes, Zaccagnini (Anthony Forrester J. R. James Baltimore, P.C., brief), for Semmes, Appellants. on & Bowen brief), (Auerbach Simmons, on Silver & Luiz R.S. Simmons Appellee. Spring, Auerbach, Advocacy Fel- Appellate Murnaghan N.
Joshua Cen- low, Baltimore; Immigration Hincapié, Marielena Nat. Em- CA; Smith, ter, Oakland, Amy Sugimori, Rebecca Nat. WA, of Amici brief Curiae Project, Olympia, ployment Law Center, Project, and Nat. Law Employment Public Justice Center. Immigration Nat. WILNER, BELL, RAKER, C.J., before
Argued CATHELL, HARRELL, and GREENE JJ. BATTAGLIA
BELL,
Judge.
Chief
eligibility
certiorari in this case to decide the
granted
We
compensation pur-
alien to receive workers’
an undocumented
Vol.)
(1991,
Title 9 of the
Repl.
Maryland
suant to
Code
Article,
Workers’ Com-
Maryland
Employment
Labor and
(“the
Act”),
sustained
injury
Act
as a result of
pensation
which,
illegal
for the
resi-
except
of employment,
the course
*4
status,
Maryland
be
The
Workers’
compensable.
dent
would
(“the Commission”) ruled that Die-
Commission
Compensation
alien,
although
the
an undocumented
Lagos,
appellee,
E.
go
sustained a work
by §
who
defined
employee,
was
to receive
eligible
for
he
workers’
injury,
related
which
was
for Montgomery
Court
benefits.
Circuit
compensation
Court,
review,
on its
affirmed. This
own
judicial
on
County,
by of
to
of the issue
prior
review
initiative
Kitchen
by Design
filed
granted
petition
Special Appeals,
insurer,
Co.,
and Baths and its
Princeton Insurance
the appel-
lants, for a
Design
writ
certiorari.
Kitchen and Baths v.
(2003).
Lagos, Md.
I. The appellee, while in operating employ Design saw the Baths, Kitchen hand, sustained an to left injury his which treatment, in addition to required, other medical surgical two result, procedures repair. to As a he filed a claim for work- ers’ with Commission. Aside from the issues of accidental injury, causal relationship, average weekly wage, insurer, and who was the responsible the Commission address, required was at the insistence of the appellants, appellee’s alien, as an eligibility, undocumented to receive workers’ compensation benefits. The parties agree that the facts surrounding appellee’s injury meet all the necessary of a requirements compensable injury Maryland under the that, Worker’s Act but for the appellee’s status,1 resident undocumented/illegal his claim would be com- pensable.
The Commission found favor of the It appellee. held that the appellee suffered “an accidental injury arising out of and 20, 2001; the course of employment on August and [found] that the disability of the claimant is the result of the aforesaid Commission, appellee 1. Before the by was instructed his counsel respond any questions regarding not to his resident status and social Nevertheless, security appellee's counsel conceded that .number. appellee] "he security [the did not have a social number” at the time he injury sustained important to his hand. This is because: States, "For an alien to be 'authorized' to work in the United he or card,’ possess security she must 'a valid social account number 1324a(b)(C)(i), § evidencing or 'other documentation authorization finds, Attorney the United States which the General by section,’ regulation, acceptable to be purposes of this 1324a(b)(C)(ii). 1324a(h)(3)(B) (defining See also 'unauthorized any alien' as alien employed by authorized to be chapter '[not] so this General’).” Attorney Compounds, Plastic Inc. v. N.L.R.B. 535 U.S. 148 n. Hoffman (2002). 122 S.Ct. 1282 n. 152 L.Ed.2d 281 n. 3 *5 thereof the claimant that as a result injury; accidental 14, 2002 to June May from totally disabled temporarily was 2002 inclusive.” in the judicial for review petition filed a appellants
The subsequently County. They Montgomery for Court Circuit the appel- on summary judgment, relying for filed a motion and, his answer to specifically, undocumented alien status lee’s 1, in No. which Interrogatory in particular, interrogatories, confirmed number. security he had no social appellee The summary Cir- judgment. for appellee The cross-moved motion summary judgment appellants’ cuit denied the Court summary judg- for cross-motion granted appellee’s The the case to the Commission. ment. It then remanded indicated, As timely appeal. noted an response, appellants, to consider what we certiorari on our own motion granted presented by appeal, this whether discern to be sole issue eligibili- his undocumented worker status affects the appellee’s benefits under the Act.2 worker’s ty to receive brief, appellants presented issues: In three their 2. Commission, Compensation did appeal the Workers’ "A. In an from summary judgment granting law court err as a matter of trial Claimant, as an Claimant/Appellee on the issue of whether the to the Maryland pursuant to the alien is entitled to benefits undocumented Compensation Act? Workers’ Commission, Compensation did appeal an from the Workers' “B. In granting summary judgment err as a matter law in the trial court Claimant, whether the as an Claimant/Appellee on the issue of to the alien, Mary- 'employee' under the terms of undocumented Compensation Act? land Workers' Commission, appeal did "C. In an from the Workers’ summary judgment granting err as a matter of law in the trial court Claimant, as an Claimanl/Appellee the issue of whether the to the on alien, immigration with federal is in direct conflict undocumented Immigration and Control policy in the Reform law and as set forth holding Supreme States Act oí 1986 and United Hoffman NLRB, U.S. 122 S.Ct. Compounds [535 Plastic 271 (2002)]?" L.Ed.2d questions approaches the issue from differ- Although each of these resolution, analy- requires, somewhat different perspective and ent ses, directly we have identi- each addresses issue the resolution of fied, worker status affects his appellee’s undocumented "whether compensation benefits under the Act." eligibility receive worker's
II. contend that appellants appellee’s status as an *6 alien his undocumented/illegal prohibits legal employment, is, precluding thus his able to being, being prove that he a that, employee.” “covered More particularly, they argue inas- much the appellee prohibited by is his undocumented/illegal and, entering alien status from into an contract in employment event, any “any contract of it alleged employment is void as is in direct conflict with the Reform and Control Immigration 1986,” Act of his claim for workers’ compensation benefits mandated, submit, must be denied. This result is they by “the “[wjithout absence of a social secu- contract” — number, rity can legal there be no contract for hire” —and the lack of current immigration case law and favorable to policy the appellee’s position.
It critical to appellants’ § is that 9-202 argument does not expressly address effect undocumented/illegal alien status illegal employment other than minors and/or has on employee” equal “covered status. Of significance 9-202; their argument clarity is the of because it ais Act, provision of Workers’ a remedial stat ute, that, it subject is to the rule should be “[the Act] construed as in liberally injured favor of employees as its provisions in order to permit will effectuate its benevolent purposes. Any uncertainty the law should be resolved claimant,” favor of the Harris v. Board Education of 21, 57, 365, Howard Md. County, (2003); 375 825 A.2d 387 Co., 133, 142, v. Podgurski OneBeacon Ins. 374 Md. A.2d 821 400, (2003) Grimm, 461, 472, 406 v. (citing Watson 200 Md. 90 180, (1952)); A.2d 185 & Mayor City Council Baltimore v. 88, 97, 757, Cassidy, 338 Md. 656 A.2d (quoting Co., 624, 629, Victor v. Proctor & Mfg. Gamble 318 Md. 569 (1990)); A.2d Lovellette Mayor City & Council of Baltimore, (1983), 297 Md. interpretation may thus of its provisions depend upon whether its terms are clear or ambiguous. As to the latter point, that, unclear, appellants maintain rather than ambiguous effect undocu- the issue of the on simply § 9-202 is silent eligibility on illegal employment status or alien mented/illegal they as- Consequently, benefits. for workers’ in that nei- regard, §of sert, interpretation liberal nor permitted. ther required the Immi appellants’ argument to the
Also essential (“IRCA”), 8 U.S.C.A. Act Reform Control gration Court by Supreme interpretation and its Hoffman Board, Labor Relations v. National Inc. Compounds, Plastic (2002). L.Ed.2d 271 Charac 137, 122 S.Ct. U.S. scheme,” comprehensive as “a by Supreme terized 147, 122 at S.Ct. 535 U.S. Compounds, Plastic Hoffman IRCA, enactment of L.Ed.2d at its or other person “it is unlawful for Congress declared *7 fee, for hire, or refer for a or to recruit entity to in rized the United alien [3] States an with respect alien to such knowing employment.” the alien is an unautho 8 U.S.C. (l)(a). § 1324a in reasoning Supreme
Emphasizing the Hoff- to an backpay the award of that Compounds, man Plastic alien, wages upon not have earned the who could illegal legally based, job obtained the fraudulently backpay who which to receive it qualification depend- place in the first whose remaining country illegally, “trivialize[s] his in ed on laws, future encourages it also condones immigration 283, 150, 1284, at 122 152 L.Ed.2d violations,” id. at S.Ct. present lawfully in the alien” is one who is "not 3. An '‘unauthorized lawfully to work in the United or is "not authorized United States” Compounds, v. National Labor Relations Plastic Inc. States.” Hoffman 1275, 1282, Board, 137, 147, 281 152 L.Ed.2d U.S. 122 S.Ct. 535 Central, a(h)(3). (2002), Ryan 35 citing § Rios v. Inc. 8 U.S.C. 1324 See (2001) § 1324 (quoting 8 U.S.C. S.E.3d Va.App. who, a(h)(3) (1994) (defining at the time of unauthorized alien as one "(A) perma- lawfully employment, an alien admitted is not either: residence, (B) employed by chapter or be this authorized to so nent General.”)). Attorney Earth Co. v. See also The Reinforced Board, Appeal Pa. 468 n. Compensation Workers’ (2002). 99, 101 n. 3 the appellants analogize that case to this one.4 They reason: it
“Regardless of whether was the Employ- Claimant IRCA, er who violated the it is the that Claimant seeks indemnity and medical benefits for he not wages could have at a legally job, earned which borne of a was fraudulent act. The Supreme Court made no distinction toas who circum- IRCA, vented the only that the undocumented alien was not eligible for as a result of his backpay undocumented status.” The on appellants rely heavily the Virginia experience, as They point Court, well. out that the Virginia Supreme pre- sented with identical issue with which presents this case Court, this under a factual pattern, § similar construed 65.2- Act,5 101 of the Virginia Workers’ Virginia analog conjunction IRCA, with the concluding claimant, alien, an illegal not an “employee” was under the Act. Virginia Development Granados Windson 103, 108-109, (1999). Corp., Va. 509 S.E.2d court explained: was
“Granados the service of Windson under any because, contract of hire under the Reform Immigration Control Act of an illegal alien cannot employed be lawfully in the 1324a; United States. See 8 U.S.C. see 4. We want way analogous to make it clear that this case is in no Compounds. They significant Plastic differ in at least three Hoffman respects: appellant Compounds Plastic was unlaw- Hoffman fully participation terminated for organizing campaign, his in a union *8 unlike in appellee sought the instant where the compen- case workers’ injured sation benefits after he performing was in the course of his duties; (2) employment appellee actually in the per- instant case process formed performing his duties and was in the of them when he injured, appellant was while the in Compounds sought, Plastic Hoffman awarded, (3) pay being and was wrongfully discharged; back for appellant Compounds produced Plastic fraudulent docu- Hoffman States, legal authority ments to establish his to work in the United while appellee simply space in the instant case left the for his social security employment application. number blank on his Act, Virginia 5. Section 65.2-101 of Workers’ part, material “[ejmployee” “[ejvery defined an person, including as a minor, any in the service of another under contract of hire.” 40.1-11.1.[6] eligi not Therefore, was Granados also Code ‘employee’ an under benefits as to receive ble hire void and of was his contract purported Act because unenforceable.”
Id. it, case, response and in to the Granados
Subsequent the defi § 65.2-101 to broaden amended Legislature Virginia relevant, as provides, That statute now of “employee.” nition aliens and including “[e]very person, “employee” that an or contract of hire minors, any under in the of another service or unlaw lawfully whether implied, or written apprenticeship, added). Ryan, Rios See employed.” (Emphasis fadly appellants What Va.App. 542 S.E.2d persuasive, experience, the Virginia about significant find as to the issue of well, was silent original statute as is that Virginia It was an act undocumented/illegal aliens. courts, that appellate Commonwealth’s Legislature, “employee.” of statutory definition amended Ill is set forth employee” The definition “covered the Labor and (1991, § 9-202 of Repl.Vol.), Md. Code It Article. is: Employment
“(a) an provided, individ- In as otherwise general. Except — in the ual, minor, while employee is a covered including contract implied or express of an under employer service or hire. apprenticeship pertinent: provided, §§ Va.Code Ann. 40.1-11.1 6. any a Class 1 misdemeanor for and constitute “It shall be unlawful any agent employer, any acting for an or employer person as an who, fee, provide documents an alien who cannot
person for a refers eligible employment in the legally for indicating that he or she is officer, agent employer, or an employment to an United Slates for knowingly employ, organization to continue representative a labor provide any who cannot employ, employment alien or refer for legally eligible indicating that he or she documents in the United States.” *9 728
“(b) employment may minor be a Unlawful —Minors.—A employee covered under this if section even the minor is employed unlawfully.” (a),
Pursuant to subsection an employee must meet condi- two (1) qualify tions to as a “covered employee,” he or she must: (2) be “in the service of an employer”; and that service must be in connection “an express with or implied contract of (b) or hire.” apprenticeship Subsection express, makes as to minors, (a) what subsection does not explicitly address with respect to other employees, unlawful of a minor does not preclude minor from a being “covered employee.” are presented
We
with an issue of statutory inter
pretation.
goal
approach
with which we
the interpreta
tion of a statute is to determine the intention of the Legisla
ture in enacting Mayor
it.
and City Council Baltimore v.
Chase,
121, 128,
987,
(2000).
360 Md.
Indeed,
756 A.2d
991
“ascertaining] and
out the
carrying]
real
intention of the
Legislature,” is the
construction,
cardinal rule of statutory
of Correction,
355, 360,
Mazor v. Dep’t
82,
279 Md.
369 A.2d
86
Fabritz,
416,
v.
citing
421,
275,
State
276 Md.
348 A.2d
(1975);
Serv.,
278
181, 185,
Fairchild v. Maritime Air
274 Md.
313,
(1975);
333 A.2d
v.
Purifoy
& Dep.
Merc.-Safe
Trust,
58, 65,
483,
273
(1974),
Md.
327 A.2d
487
and it is to
that canon that we turn
In
first.
a
examining statute we give
ordinary
Chase,
words their
and natural meaning.
236, statute, “Where the words of construed according their common and everyday meaning, are clear and unambiguous express a plain meaning,” the Court will Moore language written. to the statute effect give *10 (2003). Thus, when 663, 677, 814 A.2d Md. Miley, 372 may a court unambiguous, and plain statutory language the intent not “reflect an as to language so nor delete neither add Condon, Md. at supra, language,” in that evidenced “ ‘forced the statute with it construe may nor 632 A.2d application.” or extend its that limit interpretations’ subtle or Co., 308 Insurance Fireman’s Fund Tucker v. (quoting Id. (1986)). 69, 73, Md. ambiguous.7 not § that 9-202 is agree parties
Both clear Moreover, that the have no doubt we agree. We also expressly that fact that 9-202 does appellants maintain the 7. The minors, and, respect other than with to individuals mention aliens these simply that it is silent on means of the lawfulness triggering ambiguous, thus points; not render the statute it does applies remedial statutes. we held to interpretation that have liberal one, every or often mention persuaded. Statutes do not We are not Nevertheless, regular- they apply. category, subjects which of the to them, whatev- apply appropriate when to ly interpret those statutes Amici, Public Justice they to relate. As the object are determined er Center, Immigration Project and National Employment Law National Center, point Law out: question precisely the same extent on this to ‘‘The statute is 'silent' women, whether, example, or question for that it is ‘silent’ on left-handed, qualify employees'— can as 'covered who are individuals women, immigrants, say, Undocumented is to not at all. employees’ they 'in the if are people are all 'covered left-handed express implied contract of employer under an or of an service ” or hire.' apprenticeship event, logically covered any failure to address an issue In a statute’s mere promulgated to deal is not subject with which it was its silence, application Because the evoking interpretive ramifications. no critical, pertinent, if not to its issue is to the omitted of the statute issue, silence, may be an address the itself meaning, the failure to should, does, and, trigger the liberal ambiguity appropriate, where Hoang, statutes. See Pak interpretation applicable to remedial rule (2003), in which we A.2d 1192-1193 378 Md. Act, (1974, Deposit Maryland Security Md. Code determined that the Property Article was a remedial of the Real Repl.Vol.), 8-203 resolve, favorably applied liberal construction statute and remedial, tenants, question of was parties whom the statute fees,” provided, attorney's for which the statute "reasonable whether fees, simply attorney's a matter that the statute post-judgment included did not address. and unambiguous language §of 9-202 encompasses undocu- that, mented aliens. The statute plainly and states simply “[e]xcept provided,” otherwise employee” “covered she, characterized by two elements: he or pursuant to “an express or contract implied “in apprenticeship hire” is the service of an employer.” the plain language When statute is applied to the factual judice, circumstances sub giving without it a liberal interpretation in appel- favor lee, appellee clearly qualifies nevertheless on both ac- counts.
The legislative
§of
history
confirms this interpreta-
Chase,
(when
tion. See
“Every person, including a person eighteen under years of age, whether lawfully or unlawfully employed, in the ser- employer vice of an any under contract of hire or appren- ticeship, or express implied, and all helpers and assistants of employees paid by whether the employer if employee, employed the knowledge, constructive, with actual or of employee.” added).
(Emphasis It (1957, was codified at Md. Code Volume, Replacement 1971 Cum. Supp.), Article 1991, when, pursu- 21(b)(1).8 so codified until It remained § Article Revision, Assembly repealed the General to ant Code it, and Employment enacted the Labor and, to replace is the successor 8. Md. ch. Section Article. 1991 Laws seen, 21(b)(1). styled it is different- As have § provision one, subsections, and some of rather than having two ly, “wheth- purposes, phrase, for our notably, most language, from changed have been unlawfully employed,” lawfully er 21(b)(1). detailing the Note A Revisor’s that used 9-202, is instruc- effect, following placed their changes and It explained: tive. language new derived This section is NOTE:
“REVISOR’S 21(b)(1), 101, § Art. from former change substantive without in the service of individuals related to as that item hire. a contract employer under phrase the former for ‘minor’ substituted “The word Art. brevity. See years age”, eighteen under “person 1, § 24 of the Code. (a) section, ‘individual’ of this word
“In subsection this title since ‘person’, for the former word substituted of ‘person’, As to the definition being. human only covers 1-101 of this article. §see 21(b)(4) 101, § Art. that related of former
“The provisions are subdivision political in the service of a to an individual broader reference unnecessary light deleted as of an employer.” in the service an individual *12 explain or highlight Note does not the Revisor’s While lawfully or the “whether phrase, the deletion of expressly the the Note that do from know unlawfully employed,” change.” be “without substantive intended to revisions were Legisla- of of Department Report That is confirmed Reference, Report Legislative of Department tive Reference. Replaeement Vol- the 1964 Supplement to 8. In the 1970 Cumulative ume, during acknowledged passage, Editor’s Note an 729, Session, Chapter 741 of the become Legislative of H.B. later to 1970, signed when the the bill had not been indicated that Acts of but prepared. supplement was 14, 1991). on House Bill 1 at 1 (January That Report characterized purpose of the revisions “im- being of provement organization, elimination of obsolete or unconsti- tutional provisions, resolution of inconsistencies conflicts law, in the correction of unintended or omissions in the gaps law, deletion of or repetitive superfluous otherwise language, and general improvement of language expression.” Be- cause revisions that were substantive and policy issues were highlighted for the General Assembly phrase the deleted subject was not the of any such it highlighting, safely may be assumed that lawfully “whether or unlawfully employed” was deleted as repetitive amici, or surplusage. agree We with therefore, Legislature, more than thirty years ago, by enacting legislation that included the phrase, “whether lawfully unlawfully an employed,” manifested intention that unlawfully even employed workers be “covered employees” compensation system. workers’ That thirty intention odd years later its vitality; retains a revision made without sub- stantive in no can be change, way construed as evidencing intention to any exclude to a contractual party relationship, “whether lawfully unlawfully employed, from being eligible to receive compensation.” workers’ with,
This result furthers, is consistent and indeed Act, purpose the Workers’ Compensation to “protect[] employees, employers, and the public alike.” Polomski v. Baltimore, Mayor City & Council 344 Md. 684 A.2d (1996). 1338, 1341 Polomski, As we explained sure, “To be the Act maintains no-fault compensation system for employees and their families for work-related injuries where for lost earning capacity is otherwise unavailable. See Bethlehem-Sparrows Point Damasiewicz, Shipyard 187 Md. 50 A.2d (1947); Co., Paul v. Glidden 184 Md. (1944). time, however, At the same the Act also recognizes the need to protect employers from the unpre dictable nature and expense litigation, and the public from the tax overwhelming burden of ‘caring help human less found wreckage [along] the trail of modern
733 Goslin, v. Company Tobacco Meyers & industry.’ Liggett Brenner, (1932); v. 80, Brenner 74, 160 A. Md. 163 (1915).” 189, 192, A. 288 96 127 Md. reasons, public For these same A.2d at 1341. 684
Id. as of undocumented workers the inclusion also favors policy this the statute. Exclusion under employees” “covered retard coverage would from the statute’s class of persons individu- leave these laws and goals of workers’ related no relief for work receive options, two only als with Moreover, protection in tort. without or sue injuries would, could, perhaps statute, employers unscrupulous unsafe engage in persons this class of advantage of take retribution, in knowledge secure fear of with no practices for these caring the cost of have to bear society that would injured workers. similar to ours statutes of courts states with majority result. have reached the same the issue
that have considered Slotnik, Conn. Dowling In v. its stat
(1998),
construed
Court of Connecticut
Supreme
“any
who
ute,
part,
person
relevant
defining “employee,”
...
...
with an
[h]as
entered
employer
into or works under
...,”
[9]
to include
any contract of service
undocumented work
remedy
able to invoke the
of workers
group
ers within
Act. Simi
Compensation
that
Workers’
State’s
provided
that “em
Jersey has held
Court of New
larly,
Superior
Act,
“is
its Workers’
as defined
ployee,”
...
servant,
persons
and includes all natural
synonymous with
for financial consider
for an employer
service
perform
who
34:15-36,
...,”
and includes undocumented
ation
N.J.S.A.
aliens,
reasoned, “unless undocumented
The court
workers.
are
exclud
employees,’
expressly
or ‘casual
longshoremen
like
definition.”
ed,
statutory
self-evidently fall within
they
Cervino, Inc.,
N.J.Super.
v. Jose
Fernandez-Lopez
M.A. Patout
Artiga (App.Div.1996).
A.2d
See
Son,
(holding
(La.App.1996)
671 So.2d
the Workers’
23:1035(A),
making
provisions
LA.R.S.
31-275(9)(A)(1).
General Statutes
9. Connecticut
*14
Act
Compensation
“applicable]
to every person performing
services arising out of and incidental to
employment
his
in the
trade, business,
course of his own
or
or in the
occupation,
trade, business,
course of
employer’s
his
or occupation,” in
workers);
Landeros,
cluded undocumented
Lang v.
918 P.2d
404,
1996)
405-406 (Okla.App.
(interpreting Oklahoma’s work
statute, which,
ers’ 'compensation
in
part,
relevant
defined
to mean
“employee”
“any person
engaged
employment
any
firm,
person,
liability
limited
or
company
corporation
covered
by
Act”);
terms of the
Compensation
Workers’
(Astudillo),
1036,
Earth Co. v. W.C.A.B.
Reinforced
(Pa.Cmwlth.2000),
464,
1038
570 Pa.
735 984, 985-86 I, So.2d Velazquez, v. Cinto Inc. er Servs. 296, 519 N.C.App. Trapp, v. Rivera (Fla.App.2003); (1999). 777, S.E.2d see Virginia, Supreme the exception
With decision, Granados, whose S.E.2d 257 Va. Rios see seen, Legislature, Virginia was overruled have court, one only 542 S.E.2d Va.App. v. Ryan, Court, Com- construed its Workers’ has Supreme Wyoming Felix undocumented workers. excluding Act as pensation rel., Safety Workers’ Wyoming ex State Div., interpretation That court’s (Wyo.1999). 986 P.2d “em- moreover, the statute defined understandable, because aliens minors and employed “legally in terms of ployee” *15 justice, of department States by to United authorized work Thus, court rea- naturalization service.” immigration and soned, statutory interpretation: applying canons 27-14-102(a)(vii) lists “aliens expressly §§ Ann.
“Wyo. Stat. department the United States by authorized to work ” as “em- service and naturalization justice, immigration compensation. workers’ may by be covered ployees” who if are consid- all aliens meaningless This specific phrase to work in this coun- authorized “employees” ered whether employed intended that all legislature not. If the try or it compensation would by aliens be covered workers’ here authorized to work stated that aliens precisely have effect to all the lan- To employees. give are considered statute, an alien not author- in conclude that guage not an “employee” in the ized to work United States 27-14-102(a)(vii).” §§ under
Felix,
The employ prohibits legal alien status undocumented/illegal that from and, thus, being, one in that status ment precludes and, is, employee he or she a covered prove to that being able effect, 535 U.S. Compounds, supra, Plastic in that Hoffman that the makes clear 152 L.Ed.2d 122 S.Ct. or, at the acts compensation workers’ preempts IRCA State least, precludes an award of workers’ to benefits worker, an undocumented as contradictory of the IRCA and decision, that rejected have been by the that courts have considered them. Plastic Compounds addressed the Hoffman
application of the
to
There,
IRCA
undocumented workers.
employer
had terminated its
later
employee,
determined
alien,
to
an illegal
have been
engaging
pro-union activi
ties.
Discharge
a worker for that reason was unlawful.
For that
status,
reason and despite
illegal
his
alien
the Nation
(“the NLRB”)
al Labor Relations Board
awarded the dis
charged employee backpay for the employer’s wrongful termi
Id. at
140-41,
nation.
at
S.Ct.
152 L.Ed.2d at
reversed,
276-77. The Supreme Court
concluding that Con
gress would not have intended that backpay be
to an
paid
employee “where but for an employer’s unfair labor practices,
an alien-employee would have remained in the United States
illegally, and continued to work illegally, all the while success
fully evading apprehension by immigration authorities.”
Id.
at
at
fact,
S.Ct.
As supra, Plastic Com- Hoffman *16 pounds Court acknowledged the comprehensiveness of the IRCA regime, the scheme Congress to adopted “prohibit! the] employment of illegal aliens in the United States.” Hoffman Plastic Compounds, 535 at 122 U.S. at S.Ct. 152 L.Ed.2d at 281. It recognized also that under that “it regime, impossible is for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien identification, tenders fraudulent which subverts the corner- stone of mechanism, IRCA’s enforcement or employer knowingly hires the undocumented alien in direct contra- diction of its obligations.” 148-49, IRCA Id. at 122 S.Ct. at
737 backdrop, the Court at 282. With that 152 L.Ed.2d a for its conclusions: offered rationale noted, com- ‘forcefully’ made previously have IRCA “As we of aliens central to illegal ‘[t]he bating employment v. National Center law.’ INS immigration policy for Inc., n. and Immigrants’ Rights, U.S. (1991). by establishing It did so L.Ed.2d S.Ct. system,’ verification ‘employment an extensive 1324a(a)(l), to to aliens who designed deny § (b) States, (a) or are not the United lawfully present are States, to in the work United lawfully authorized 1324a(h)(3).... is critical to the system § This verification it, employ- mandates that regime. To enforce IRCA IRCA all hires new verify identity eligibility ers they work. examining specified begin documents before 1324a(b). unable to applicant present § If an alien documentation, be alien cannot required unauthorized 1324a(a)(l). § hired. hires unknowingly if an unautho-
“Similarly, employer alien, the alien while rized or if becomes unauthorized to the work- employed, employer compelled discharge er of the worker’s undocumented status. upon discovery 1324a(a)(2). punished § who IRCA are Employers violate fines, 1324a(e)(4)(A), subject crimi- may § be by civil 1324a(f)(l). also it a crime prosecution, § nal IRCA makes alien to verifica- employer for an unauthorized subvert 1324c(a). by tendering tion fraudulent documents. system ‘any It thus aliens from to use prohibits using attempting counterfeit, altered, falsely made document’ or forged, ‘any lawfully respect person document issued to or with obtaining employ- than for possessor’ purposes other 1324c(a)(l)-(8). §§ in the Aliens who ment United States. are to fines attempt subject use or to use such documents 1546(b).” criminal prosecution. U.S.C. 147-48, at at 281-82. 122 S.Ct. L.Ed.2d Id for arguments by This rationale foundation provided has are undocumented/illegal ineligible workers employers pre- benefits such benefits are because workers’ *17 or because such empted employment contracts with workers illegal. are Supreme Dowling
Before the Connecticut were two advanced arguments by employer/respondent, directly (1) raising preemption. argued The that because it employer requires employer payments to make to the undocumented worker, a workers’ a compensation award constitutes “civil against by sanction” which is employer, preempted 1824(a)(h)(2) IRCA, § an award of compensa- workers’ it tion is because impliedly preempted IRCA contra- purpose rejected venes the of the IRCA. The court both arguments. respect
With
to direct
it
preemption,
concluded:
1324a(h)(2),
express
provision
“Section
preemption
Act,
Immigration
only prohibits
Reform
that states from
civil
imposing
employ
sanctions
those who
undocu-
upon
mented aliens. Because
benefits
workers’
are
designed
compensate the worker
injuñes arising
[ ]’to
out of and
employment,
regard
course of
without
fault, by imposing a form of strict
liability
employ-
on
added)
er^];
(emphasis
Corp.,
Panaro v. Electrolux
589, 598-99,
(1988);
Conn.
“The Act primary Immigration Reform was procedures to establish make it that more difficult to employ punish undocumented workers employers who know- jobs offer ingly to those National Labor Rela- workers. Inc., v. Group, tions Board A.P.R.A. Fuel Oil Buyers supra, 134 F.3d [50] 55-56; see United States Todd (9th Cir.1990). F.2d Corp., Immigration gives Reform Act itself no indication that Congress intended preempt the act to state laws state laws operate whenever Indeed, to benefit undocumented aliens. it is clear from [’] legislative history Immigration reform [the] [of Act] *18 statute new some conflict between anticipated Congress ... statutes.” state and various
Other Farms, Inc., v. Waymouth issue. See Correa tion/preclusion (“As written, (Minn.2003) the IRCA does 324, 664 N.W.2d 329 state workers’ receiving from aliens not unauthorized prohibit benefits____Thus, that the IRCA we conclude compensation of states to award authority preclude to not intended was aliens.”); unauthorized benefits to compensation workers’ I, 860 Velazquez, v. Inc. Cinto Employer Servs. Safeharbor (“IRCA express preemption not contain does 986 So.2d the field as occupy thoroughly does it so language nor for left no room Congress inference require reasonable Further, benefits other found to act. since states Hoffman aliens, no there is applicable illegal to be backpay than case.”); Rein in this state and federal law conflict between (Astudillo), 1038 Earth Co. v. W.C.A.B. forced, itself, not, alien (“the preclude illegal of does IRCA purposes ‘employee’ considered an being from Co., Inc., 559 Act.”); N.C.App. Masonry v. Belk Ruiz (“we prohibiting hold that federal law S.E.2d aliens from prevent illegal illegal of aliens does hiring Workers’ included in North Carolina being illegal law prevent nor does federal ‘employee,’ definition of status, aliens, receiving from immigration on solely based benefits.”). workers’ rejected appellants’ “disability” court also Dowling agree with “[ajlthough we argument, stating emphatically, ... Compensation A]ct ‘under the respondents that LWorkers’ employment, either from a contract must arise coverage that an agree do not express implied’... is so illegal and an alien an employer between
agreement
that,
law, the agreement
a matter of
by illegality
tainted
”
712 A.2d at
a ‘contract of service.’
cannot constitute
(citations omitted).
noting
superficial appeal,
its
Although
Cervino,
also
A.2d at
v.
Fernandez-Lopez
court in
“If [peti-
employer:
advanced
argument
rejected
alien,
is an
it is
illegal
against Federal law for him to
tioner]
Therefore,
be in the United States and work here.
it appears
that his contract of employment must be illegal.” See also
Auto
Champion
Body
Appeals Office,
Industrial Claim
that,
P.2d
(rejecting argument
claim
“because the
alien,
ant was an undocumented
employers
precluded
were
from
him
hiring
pursuant to the
provisions
the Immigration
(IRCA).... Therefore,
Reform and Control Act of 1986
...
claimant
was under a ‘legal disability’
prevented
which
him
him,
law,
from
working
precluded
which
as a matter of
proving
from
loss for
any wage
purposes
showing entitle
benefits”);
to temporary
ment
partial disability
Lang v.
*19
Landeros,
(same).
We undocumented worker in the course and, employment his is a “covered employee” under 9-202 therefore, eligible is to receive worker’s bene- fits. AFFIRMED,
JUDGMENT WITH COSTS. HARRELL,
Dissenting Opinion by J.
HARRELL, Judge, dissenting.
Majority
The
opinion,
construing
after
and
language
legislative history
§of
9-202 of
Labor
and Employment
Article, holds that appellee’s undocumented worker status is
bar to
receipt
no
his
of workers’ compensation benefits under
Maj.
the Act.
at
op.
Section 9-202 of the Labor and Employment key statutory here, at provision provides issue that the defini- tion of a “covered employee” is: (a) In as general. Except provided, otherwise an individu- —
al, minor, including ais covered employee while service of an employer under an express implied or contract or hire. apprenticeship (b) Unlawful may minor be a cov- —Minors.—A ered under employee this section even if the minor is employed unlawfully. (1991, Employment Labor and 1999 Repl.Vol.),
Maryland Code Article, § 9-202.1 primary recites the appropriately Majority opinion
The
and
will ascertain
construction:
the Court
statutory
canon
Maj.
at
op.
Legislature.
intention of the
carry out the real
so,
“read
In
the Court will
doing
at 823.
word,
is ren-
clause or sentence
phrase,
that ‘no
statute so
”
A.2d
Maj. op. at
meaningless.’
or
surplusage
dered
omitted).
(citations
plain
If
words are
the statute’s
at 823
effect to the statute
give
“will
then
unambiguous,
adding
refrain from
and will
language
written”
“
in that
to ‘reflect an intent
evidenced
deleting language
”
(citations
omit-
at
Yet,
by
statutory
to abide
these
Majority neglects
The
present
to the
case.
application
construction principles
simply
“plainly
declares that
Majority opinion
that,
a ‘covered em-
provided,’
as otherwise
‘[ejxcept
states
ployee’
characterized
two
elements:
[1]
he or
she,
pursuant
or hire’
[2]
to ‘an
is ‘in the service of an
express
implied
employer.’
contract of
”
Maj.
apprenticeship
op.
omitted).
summation,
(citations
That
howev-
even if employed unlawfully. By ignoring §
Majority creates an interpretation reflecting an intent not
evidenced
by
Legislature’s
language,
chosen
it
construing
a forced
that
interpretation
hyper-extends
with
its
mean-
plain
ing. The
of the
of
plain meaning
language
the full statute
me from
prevents
joining Majority opinion.
Furthermore,
Majority’s
use of legislative history here
is inconsistent with established
of
con-
principles
statutory
normally applied by
struction
the Court.
finding
After
statute to be unambiguous,
Majority
reflects
upon
legislative
§of 9-202
history
part
as
of a claimed “confirmato-
(citations
730,
ry process.” Maj. op. at
[i]f either [the statute’s] inherently byor reference to other relevant laws or circum- stances, ends; as to inquiry legislative intent we do not various, inconsistent, need to resort to the and sometimes construction, external rules of for “the Legislature pre- sumed to meant it have what said and said it what meant.” Kushell, Res., Dept. 563, 577, IV v. Natural 385 Md. 186, Marie, A.2d 193-94 (quoting Arundel v. Corp. 489, 502, (2004)); Md. 860 A.2d see also Smack v. Dept. 298, 304-05, Health and Mental Hygiene, 378 Md. (2003); A.2d Maryland 1178-79 Div. Labor and Contractors, 407, 421-22, Industry Triangle 366 Md. Gen. (2001); 784 A.2d Chesapeake Amusements Inc. v. Riddle, (2001); 363 Md. 766 A.2d Abramson v. Montgomery County, 328 Md. (1992). instance, Contractors,
For in Triangle General the of a interpreted meaning provision Maryland Pre- Act, vailing recodification, Wage after finding language its be clear and unambiguous affecting substantive change in the statute it existed before recodification. Triangle
743 Contractors, Though at 542. Md. at Gen. recodification, which Note to the the Revisor’s considered of from the former version change that no substantive stated intended, plain to the not blinded we were provision the was statute, refusing to of the of the current version meaning original the not evidenced an intention which “express [was] Kuntz, 86, 93, A.2d Md. (quoting Id. Welsh form.” (1950)). 343, 345 justified been review- certainly would have Majority (Md. §to 9-202 history of the legislative predecessor the
ing
21(b)(1)),
to
the Revisor’s Notes
Code,
including
§
Art.
Legis-
Department
of the
Report
recodification and
(H.B.) 1-1991,
it found
House Bill
had
Reference on
lative
that the
the occasion
Only upon
to be ambiguous.2,3
presumption
meaning is uncertain would
plain
statute’s
not affect a substantive
does
arise that a recodified version
modify
was
Legislature’s
unless the
intent
law
change
Contractors, 366 Md. at
Triangle General
unmistakable.4
543.
784 A.2d at
Report
Notes and
In addition to the Revisor’s
in the
on H.B.
cited
Legislative
Reference
Department
be
that the recodification was
Majority opinion, it should
noted
stylistic changes
merely
renumbering
a
a series
ambigu-
Although Majority opinion
is "not
states that
statute
2.
ous,"
lawful
the statute’s silence about whether
it later states that
ambiguity
an
in the
employment
requirement for adults creates
is a
Maj. op.
statute.
at 729 n. 7.
ambiguous,
may
but not for the reason set forth
Section 9-202
be
3.
employ-
Majority opinion.
there is no lawful
7 of the
Either
footnote
provided
expressly
in sub-
requirement for
because none is
ment
adults
(a),
opines,
Majority
or there is
lawful
section
as the
adults,
meaning
plain
That
requirement
as I believe the
reveals.
meaning might
great
disagree
create
minds
as to
section's
legislative history
ambiguity
to ascertain
that necessitates a look at the
legislative
found in the
Legislature's true intent. The evidence
history
nonetheless inconsistent.
of 9-202 is
Triangle
presumption
Court overcame in both
General
A
4.
Abramson,
Contractors,
Md. at
Perhaps the rationalizes its Majority interpretation of the statute because it that 1 mistakenly believes H.B. failed to 9-202(b) § include “adults” in it when re-structured former 21(b)(1). Code, 9-202, § Md. Art. predecessor § The to 21(b)(1), § provided “[ejvery person, a including person eighteen years age, under lawfully unlawfully whether or ...” a employed employee. was covered The clause “whether 21(b)(1) lawfully unlawfully employed” likely most minors, “every person”- modified although there is —adults grammatical room for debate on that score. The Code Revi- sion Commission that drafted H.B. 1-1991 may have misun- derstood in the process reconstruction the grammatical sense predecessor sentence statute and revised the section into be that it parts; may, two there is no doubt in mind that my clause “whether lawfully unlawfully 9-202(b) §in employed” modifies only now minors. Whether the Legislature and its in 1991 blundered into advisors/staff the current structure of the Majority’s argument that Legislature intended no changes substantive to the law in Legisla- H.B. is hindered because the adoption its (if to the mistake a ture correct ample opportunity had was) later in the same session as as over the mistake it well since. years error, should not
Despite
drafting
potential
Court,
damage.
though
deign
repair
presumed
to ascertain and effectuate
intent
charged
duty
with
error,
Legislature’s
to fix
if
obliged
is not
Legislature,
here,
appears
there
when a statute otherwise
especially
one
A
one
clearly
policy,
usually
on its face.
better
written
Court,
disciplined
a more
employ
ap-
this
followed
*23
statutory
rule of
construc-
meaning
proach
apply
plain
Kuskell, IV,
385 Md. at
tion
such instances. See
193-94; Smack,
304-05,
at
Md. at
835 A.2d
A.2d
1178-
Contractors,
421-22,
79;
366 Md. at
Triangle General
Amusements,
542;
363 Md. at
Chesapeake
A.2d at
Abramson,
1042;
at 901-
A.2d at
Thus, Majority ambiguous had the found 9-202 to be even (which 2) supra it note and concluded from did—see perhaps history provide intended to legislative Legislature its subject minors adults were not to a that both lawful legitimate in a employment requirement, judicial fiat. To do so is to revise the statute position cases extends the our more modern inconsistent with beyond respect limits we would presumably Court’s reach policy implications. case with social and compelling less Therefore, I respectfully judg- I dissent. would reverse Montgomery County. ment of the Circuit Court