A second set of statutes expressly address aliens, but without clear reference to their legalstatus. In five states (Illinois, Michigan, Minnesota, North Dakota, and Ohio), for example, theworkers’ compensation provisions expressly include aliens but make no express reference totheir legal or illegal status. See, e.g., 820 I
. 305/1(b)(2) (2005) (“Every person inthe service of another . . . including aliens”); M
§ 418.161(1)(l) (2007) (“Every person... including aliens.”) Where those statutes have been interpreted by the courts, they have been deemed to include illegal aliens—on the rationale that the legislature could have limitedcoverage to “legal” aliens if it had intended such a limitation.
Sanchez v. Eagle Alloy Inc.
, 658 N.W.2d 510, 515-516 (Mich. Ct. App. 2003);
Correa v. Waymouth Farms, Inc.
, 664 N.W.2d 324,329 (Minn. 2003). In several other states (Alabama, Arizona, Colorado, Montana, NorthCarolina, South Carolina, and Virginia), the legislature has extended coverage to “aliens andminors” who are “legally authorized” to work.
. § 97-2(2) (2003). Thisformulation begs the question whether the “legally authorized” modifier extends to aliens or onlyto minors. The courts that have addressed this question generally conclude that it does not—andthat all aliens (legal and illegal) are covered.
Ruiz v. Belk Masonry Co., Inc.
, 559 S.E.2d 249,252 (N.C. Ct. App. 2002).The third and largest set of statutes do not address aliens at all. Nineteen states (Alaska,Arkansas, Connecticut, Delaware, Hawaii, Iowa, Kansas, Louisiana, Maine, Massachusetts, Nebraska, New Hampshire, New Jersey, New Mexico, Oklahoma, Pennsylvania, Rhode Island,Washington, Vermont) have very broad definitions of covered workers—largely paralleling thefederal definition: “an individual employed by an employer,” 29 U.S.C. § 203(e)(1). Five states(Georgia, Indiana, Kentucky South Dakota, Wisconsin) use similarly broad language, whileexpressly including minors.
. § 34-9-1(2) (2006). Six other states (Maryland,Mississippi, Missouri, Oregon, Tennessee, West Virginia) likewise expressly include minorswithin their broad definition of covered workers, while also providing that minors are covered
regardless of their illegal status
. & E
. § 9-202 (2006).These formulations seem open to a construction that would either cover or decline tocover illegal aliens, depending on the legislative history or other indications of legislative intent.At least two courts, however, have found the latter two variations to encompass illegal aliens.
See Continental PET Technologies, Inc. v. Palacias
, 604 S.E.2d 627, 629 (Ga. App. 2004);
Design Kitchen and Baths v. Lagos
, 882 A.2d 817, 824-828 (Md. 2005). As for the first, anumber of courts have held the statutes to include illegal aliens because the broad languageindicated legislative intent to include all workers, whether legal or not, and the statute did notexpressly exclude aliens.
See Dowling v. Slotnik
, 712 A.2d 396, 407-08 (Conn. 1998);
Artiga v.M.A. Patout and Son
, 671 So.2d 1138, 1139 (La. App. 1996);
Fernandez-Lopez v. Jose Cervino, Inc.
, 671 A.2d 1051, 1053 (N.J. Super. Ct. 1996).Even where illegal aliens are otherwise deemed to fall within a broad definition of covered workers, they are sometimes excluded on alternative grounds—such as the absence of anenforceable contract, fraud, or lack of causation. The seminal case is
Granados v. Windson Dev.Corp.
, 509 S.E.2d 290 (Va. 1999), which was addressed in this newsletter last year.
held that because illegal aliens “cannot be employed lawfully in the United States,” theemployment contract was void and Granados was therefore not an “employee” for purposes of the Virginia workers’ compensation statute.
at 293. The Virginia state legislature