Undocumented Workers Are Covered by D.C. Workers Compensation Act

In Asylum co. v. D.C. Depart. of Employment Services, No. 08-AA-1158 (D.C. Dec. 23, 2010), the Court of Appeals considered an issue of first impression in D.C.: whether a worker who is an undocumented alien is covered under the District of Columbia Workers' Compensation Act.

The Court affirmed the Compensation Review Board's judgment that based on the plain meaning of the language of the Act and the legislative intent, an undocumented or illegal alien is an "employee" as defined in the Act. The Court observed that:

we have little difficulty agreeing with the CRB's conclusion. It is consistent with the language of the Act, specifically, D.C. Code ? 32-1501 (9) (2001), which excepts certain specified categories of workers from the definition of "employee," but otherwise sets out a broad definition that neither excludes undocumented aliens nor makes a worker's immigration status relevant. See Report on Bill 3-106 at 10 (referring to the legislation's "all[-]inclusive delineation of coverage"). As the CRB recognized, the Council has made repeated amendments to the definitional section of the Act, including amendments to the provision defining the term "employee."

The Court followed the reasoning of precedent from Connecticut, which stated that:

declining to treat contracts of employment with undocumented aliens as "contracts" within the meaning of the workers' compensation statute would provide unscrupulous employers with a financial incentive to hire undocumented workers, while "including employment agreements between illegal aliens and their employers within the purview of `contracts of service' . . . would accord with, rather than contravene, the public policy Congress espoused when [IRCA] was enacted."

The Court also considered and rejected the argument that IRCA preempted the D.C. Workers Compensation Act.

In reaching its decision, the Court in a footnote acknowledged a pragmatic reason for according undocumented workers rights under the Workers Compensation Act: if the undocumented workers cannot recover under the Act, then they would be able to file tort suits to recover damages. Among other authorities, the Court cited to a leading treatise on this point:

Larson's Workers' Compensation Law, supra, ? 66.03[3][c] ("Given that illegal aliens are entitled to access to the courts and have the ability to file both contract and tort claims, it would seem illogical to bar illegal alien workers from seeking compensation benefits long considered a substitute for damages").