ALEJANDRO VAZQUEZ V EAGLE ALLOY INC
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID SANCHEZ,
FOR PUBLICATION
January 7, 2003
9:00 a.m.
Plaintiff-Appellee,
v
No. 238003
WCAC
LC No. 00-000248
EAGLE ALLOY INC.,
Defendant-Appellant,
and
SECOND INJURY FUND,
Defendant-Appellee.
ALEJANDRO VAZQUEZ,
Plaintiff-Appellant,
v
No. 239592
WCAC
LC No. 01-000182
EAGLE ALLOY, INC.,
Defendant-Appellee.
Updated Copy
March 14, 2003
Before: Markey, P.J., and Cavanagh and R.P. Griffin*, JJ.
MARKEY, P.J.
In Docket No. 238003, defendant Eagle Alloy, Inc., appeals by leave granted from an
order of the Worker's Compensation Appellate Commission (WCAC) affirming with
modification the magistrate's order on remand awarding weekly wage-loss benefits to plaintiff
_______________________________
* Former Supreme Court justice, sitting on the Court of Appeals by assignment.
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David Sanchez, an undocumented alien in the United States.1 We affirm in part and reverse in
part.
In Docket No. 239592, plaintiff Alejandro Vazquez, also an undocumented alien in the
United States, appeals by leave granted from an order of the WCAC, sitting en banc, denying
Vazquez weekly wage-loss benefits on the basis of its construction of subsection 361(1) of the
Worker's Disability Compensation Act (WDCA), MCL 418.361(1). We affirm in part and
reverse in part.
I. Introduction
In deciding these consolidated appeals, we answer two questions of first impression:
First, are plaintiffs "employees" under the definition provided by WDCA subsection
161(1)(l), MCL 418.161(1)(l) ("[e]very person in the service of another, under any contract of
hire, express or implied, including aliens")? Yes. We hold that including undocumented aliens
such as plaintiffs as "aliens" within the WDCA definition of "employee" accords with the
language and apparent legislative intent of subsection 161(1)(l). Plaintiffs are "employees" who
are not only eligible but also required to invoke the exclusive remedy provided by the WDCA in
lieu of any tort-based remedy.
Second, does WDCA subsection 361(1), which provides for suspension of weekly wageloss benefits when the employee is unable to obtain or perform work because of commission of a
crime, operate to temporarily suspend any award of weekly wage-loss benefits to plaintiffs? Yes.
We hold that defendant has borne its burden of demonstrating that plaintiffs "committed" a crime
under subsection 361(1) to the extent that any award of weekly wage-loss benefits to which
plaintiffs are entitled should be suspended.
II. Facts
A. Docket No. 238003
Plaintiff Sanchez, a Mexican national, purchased a fake social security card in California
and thereafter obtained a California driver's license. Upon his arrival in Michigan, Sanchez
presented defendant with the false documentation and signed an employment application that
contained the averment that he was legally present in the United States. In March 1997, he began
1
For an alien to be "authorized" to work in the United States, the alien must possess "a valid
social security account number card," 8 USC 1324a(b)(1)(C)(i), or "other documentation
evidencing authorization of employment in the United States that the Attorney General finds, by
regulation, to be acceptable for purposes of this section," 8 USC 1324a(b)(1)(C)(ii). See also 8
USC 1324a(h)(3)(B) (defining "unauthorized" alien as any alien "[not] authorized to be so
employed by this Act or by the Attorney General").
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full-time employment for defendant doing grinding work, among other tasks. He simultaneously
worked full-time doing grinding work for another employer.
In September 1998, Sanchez suffered a right hand injury when one of defendant's
machines closed on his hand, crushing and burning it between two heated metal plates. After
many surgeries and physical therapy, he was released to restricted work in April 1999 and
unrestricted work in September or October 1999. Sanchez did not attempt to also return to
working for the other employer.
In August 1999, defendant terminated Sanchez' employment because Sanchez was unable
to refute a notice defendant received from the Social Security Administration in June 1999 that
Sanchez's social security number was invalid. Defendant informed Sanchez that it would rehire
him if he became a documented alien in the United States.
In December 1999, still with his status as an undocumented foreign citizen, Sanchez
obtained employment through a temporary employment agency, working forty hours a week.
Sanchez applied for worker's compensation benefits, and defendant filed a petition
seeking recoupment of benefits and reimbursement from the Second Injury Fund. The
magistrate2 found that Sanchez was an "employee" under the WDCA and awarded him a closed
award of weekly wage-loss benefits through the date on which his employment status was
discovered. The magistrate reasoned that Sanchez' wage-loss benefits were forfeited on the date
his employment status was discovered under subsection 361(1), which provides in pertinent part
that "an employer shall not be liable for compensation . . . for such periods of time that the
employee is unable to obtain or perform work because of . . . commission of a crime." MCL
418.361(1). The magistrate also ordered defendant to pay for all reasonable and necessary
medical treatment of Sanchez' right hand pursuant to MCL 418.315.
On appeal, a majority of the WCAC agreed with the magistrate that the definition of
"employee" in WDCA subsection 161(1) included Sanchez, but reversed the magistrate's
decision to forfeit benefits pursuant to WDCA subsection 361(1). The WCAC remanded to the
magistrate for further fact finding on the question of compensable disability. On remand, the
magistrate granted Sanchez an open award of benefits, which a majority of the WCAC affirmed.
Defendant timely filed an application for leave to appeal to this Court, which this Court
granted.
B. Docket No. 239592
Plaintiff Vazquez, also a Mexican national, used a fake social security card and fake
resident alien card to obtain work with defendant as a grinder. In January 1999, Vazquez lifted a
heavy metal part at work and experienced sudden pain in his left shoulder. He was diagnosed
2
Both of these cases were initially heard and decided by Magistrate Donna J. Grit.
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with a left acromioclavicular joint separation. Defendant gave Vazquez favored work but
subsequently terminated his employment in April 1999 for failure to adhere to defendant's
attendance policy.
Defendant received a notice from the Social Security Administration in June 1999 that
Vazquez' social security number may be invalid, a fact that was subsequently confirmed by
counsel for Vazquez in October 1999.
Vazquez applied for worker's compensation benefits from defendant, and the magistrate
awarded Vazquez a closed award of weekly wage-loss benefits from the date his employment
was terminated until the date on which his illegal status was confirmed. The magistrate also
ordered defendant to pay for all reasonable and necessary medical treatment of Vazquez' left
shoulder pursuant to MCL 418.315.
The WCAC heard the appeal en banc and split on the proper construction of WDCA
subsection 361(1). The majority addressed only the "commission of a crime" language in
subsection 361(1) and held that this subsection operated to temporarily suspend payment of all
weekly wage-loss benefits to Vazquez. Accordingly, the majority affirmed the magistrate's
opinion with modification. The majority opined that its statutory interpretation discouraged
further violations of the law by undocumented workers while keeping employers liable for
paying the medical expenses of workers injured on the job.
The concurring commissioner would have found that Vazquez did not meet the threshold
requirement of entering into a valid "contract of hire" as required by WDCA subsection
161(1)(l).
The commissioners who joined the dissenting opinion would have relied on the prior
decision of the WCAC in Sanchez to reverse the magistrate's closing of the award.
Vazquez filed an application for leave to appeal to this Court, which this Court granted.
We consolidated these two appeals and accepted briefing from amicus curiae.
III. Analysis
The WDCA requires that employers provide compensation to employees for injuries
suffered in the course of the employee's employment, regardless of who is at fault. MCL
418.301(1); Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 570; 592 NW2d 360 (1999); Layman
v Newkirk Electric Assoc, Inc, 458 Mich 494, 502; 581 NW2d 244 (1998), overruled in part on
other grounds in Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691; 614 NW2d 607
(2000). In return for this almost automatic liability, employees are limited in the amount of
compensation they may collect, and, except in limited circumstances, may not bring a tort action
against the employer. MCL 418.131; Hoste, supra at 570; Welch, Worker's Compensation in
Michigan: Law & Practice (3d ed), § 1.2, pp 1-2 to 1-3.
The WDCA defines who is an "employee" in subsection 161(1)(l) and, by doing so,
demonstrates which individuals have essentially traded the right to bring a tort action for the right
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to benefits. Hoste, supra at 570. Because the WDCA was intended as remedial legislation, it is
liberally construed to grant, rather than deny, benefits. Goff v Bil-Mar Foods, Inc (After
Remand), 454 Mich 507, 511; 563 NW2d 214 (1997), overruled in part on other grounds in
Mudel, supra.
We review de novo questions of law involved in final orders from the WCAC. Mudel,
supra at 697, n 3, citing DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300
(2000).
A. Construction of WDCA Subsection 161(1)(l)
Our Supreme Court has held that the threshold inquiry in worker's compensation cases is
whether the worker is an "employee" under section 161(1)(l), Hoste, supra at 571-573,3 and we
begin our analysis with this inquiry.
In subsection 161(1)(l), the Legislature defined "employee" as
[e]very person in the service of another, under any contract of hire, express or
implied, including aliens; a person regularly employed on a full-time basis by his
or her spouse having specified hours of employment at a specified rate of pay;
working members of partnerships receiving wages from the partnership
irrespective of profits; a person insured for whom and to the extent premiums are
paid based on wages, earnings, or profits; and minors, who shall be considered the
same as and have the same power to contract as adult employees. Any minor
under 18 years of age whose employment at the time of injury shall be shown to
be illegal, in the absence of fraudulent use of permits or certificates of age in
which case only single compensation shall be paid, shall receive compensation
double that provided in this act.
Whether plaintiffs in these cases are "employees" for purposes of the WDCA requires us
to construe both the word "aliens" and the phrase "contract of hire" in the WDCA definition of
"employees." The majority of the WCAC in Sanchez found no impediment from WDCA
subsection 161(1)(l) to Sanchez' receipt of benefits. The WCAC members who joined the
controlling opinion in Vazquez did not expressly reach this issue, although their focus on
subsection 361(1), an affirmative defense, indicates that they also found this threshold
requirement satisfied. We, too, hold that plaintiffs are "employees" under the definition provided
in WDCA subsection 161(1)(l).4
3
The Hoste Court discusses subsection 161(1)(b), which was changed to 161(1)(l).
4
The majority of other jurisdictions considering the issue have also determined that
undocumented aliens are eligible for worker's compensation benefits. Most notably, the courts in
California, Colorado, Florida, and North Carolina reached their conclusions on the basis of
worker's compensation's statutes, which, like subsection 161(1)(l) of Michigan's act, expressly
(continued…)
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1. "Aliens"
Defendant argues that the reference to "aliens" in the definition of "employee" in WDCA
subsection 161(1)(l) does not support the conclusion that illegal aliens are entitled to benefits
under the act. Defendant opines that the act is "silent" in this regard and that it therefore only
makes sense to interpret the word "aliens" as referencing only legal aliens. We disagree with
defendant's statutory construction.
When reviewing matters of statutory construction, this Court's primary purpose is to
discern and give effect to the Legislature's intent. Robertson v DaimlerChrysler Corp, 465 Mich
732, 748; 641 NW2d 567 (2002). The first criterion in determining legislative intent is the
specific language of the statute. Id. The Legislature is presumed to have intended the meaning it
has plainly expressed, and, if the expressed language is clear, judicial construction is not
permitted and the statute must be enforced as written. Id.
This Court must apply the language of the statute as enacted, without addition,
subtraction, or modification. Lesner v Liquid Disposal, Inc, 466 Mich 95, 101; 643 NW2d 553
(2002). This Court may not read anything into an unambiguous statute that is not within the
manifest intent of the Legislature as derived from the words of the statute itself. Id. In other
words, the role of the judiciary is not to engage in legislating. Id. at 101-102.
Further, if the statute provides its own glossary, then the terms must be applied as
expressly defined. Tryc v Michigan Veterans' Facility, 451 Mich 129, 136; 545 NW2d 642
(1996). However, where a statute does not define a term, resort to a dictionary for a definition is
appropriate. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002);
Lumley v Univ of Michigan Bd of Regents, 215 Mich App 125, 130; 544 NW2d 692 (1996).
In WDCA subsection 161(1)(l), the Legislature included the word "aliens" within the
definition of "employee" without the modifying adjectives "illegal" or "legal." Without
modification, "alien" means only "[a] foreign born citizen who has not qualified as a citizen of
the country," Black's Law Dictionary (6th ed), or "a foreign-born resident who has not been
naturalized and who owes allegiance to another country," Random House Webster's College
Dictionary (1991). The plain meaning of "aliens" thus includes not only foreign born citizens
with documentation to work in the United States but also those without such documentation.
(…continued)
include "aliens" within their definitions of "employee." See Del Taco v Worker's Comp Appeal
Bd, 79 Cal App 4th 1437, 1441; 94 Cal Rptr 2d 825 (2000), Champion Auto Body v Industrial
Claim Appeals Office, 950 P2d 671, 673 (Col App, 1997), Gene's Harvesting v Rodriguez, 421
So 2d 701 (Fla App, 1982), and Rivera v Trapp, 135 NC App 296; 519 SE2d 777 (1999).
However, these state statutes are not completely analogous to our state statute because they also
specifically provide worker's compensation coverage to persons "whether lawfully or unlawfully
employed." See Cal Labor Code 3351; Colo Rev Stat 8-40-202(1)(b); Fla Stat 440.02(15)(a);
and NC Gen Stat 97-2(2).
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Further, the Legislature did not otherwise exclude undocumented aliens from the
coverage of the WDCA. In contrast, the Legislature has explicitly excluded agricultural workers,
MCL 418.115; domestic workers, MCL 418.118; real estate brokers, MCL 418.119; and foreign
exchange students, MCL 418.161(1)(b), from the coverage of the act.
Therefore, we hold that by expressly including the word "aliens" in the definition of
"employee," by failing to modify the word "aliens" with the adjective "illegal" or "legal," and by
failing to otherwise exclude illegal aliens from the act's coverage, the Legislature intended to
include undocumented aliens such as plaintiffs as "aliens" within the WDCA definition of
"employee."
We turn to the remaining inquiry from WDCA subsection 161(1)(l), whether plaintiffs
worked under a "contract of hire" for defendant.
2. "Contract of Hire"
Defendant argues that because plaintiffs fraudulently misrepresented their employment
status when seeking employment from defendant, plaintiffs did not enter into a valid contract of
hire with defendant that would permit payment of worker's compensation benefits. We disagree.
Again, the threshold inquiry in worker's compensation cases is whether the worker is an
"employee" under subsection 161(1)(l). Hoste, supra at 571-573. In pertinent part, subsection
161(1)(l) defines "employee" as "[e]very person in the service of another, under any contract of
hire, express or implied . . . ." Hence, the presence of a "contract of hire" is a precondition to
receiving benefits under the WDCA.
The phrase "contract of hire" was first construed in Higgins v Monroe Evening News, 404
Mich 1; 272 NW2d 537 (1978), where the plaintiff, a five-year-old child, was injured while
accompanying a substitute newspaper carrier on his newspaper route. The dispositive issue was
whether the plaintiff was acting under a "contract of hire" with the substitute paper carrier and,
thus, an employee for purposes of receiving benefits under the WDCA at the time he was struck
by an automobile and seriously injured. Id. at 17-18.
Justice Moody wrote the lead opinion of the Court and found that no "contract of hire"
existed in the case before it because there had been no bargained for exchange. Higgins, supra at
20-21. The relationship between the newspaper carrier and the plaintiff was merely social,
illustrating a gratuitous promise rather than a contract of hire. The newspaper carrier gratuitously
promised to "give" the plaintiff a dime, bottle of pop, or candy if he helped in delivering the
papers. Id. at 21. Justice Moody found that to reach the conclusion that a contract of hire
existed, each of the parties must have intended to suffer a detriment to receive a benefit and that
each must have agreed to exchange those detriments and benefits. Id.
Subsequently, in Hoste, supra, where the plaintiff was a member of the National Ski
Patrol System who suffered an injury while "forerunning" a course at a ski resort in advance of a
race, the issue was also whether the plaintiff was an "employee" as defined in subsection
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161(1)(l) of the WDCA. Our Supreme Court expressly approved of the magistrate's discussion
of Higgins regarding the proper interpretation of the word "contract" in the phrase "contract of
hire." Because the plaintiff received privileges such as free skiing, complimentary hot beverages,
and meal discounts in lieu of a regular income from the ski resort, the Court specifically
considered the distinction between a "contract of hire" and a relationship that is contractual but
not "of hire." The Court concluded that the plaintiff was not entitled to worker's compensation
benefits because he was not an employee working under a "contract of hire" but a "gratuitous
worker" or "individual assisting another with a view toward furthering his own interests." Hoste,
supra at 578-579.
Applying Higgins and Hoste here, we hold that the "contract for hire" element of the
WDCA definition of "employee" is satisfied and that plaintiffs were "employees" in the service
of another. Plaintiffs agreed to perform certain work for defendant in exchange for wages,
performed that work and received wages, and sustained injuries arising out of and in the course
of this employment. Hence, defendant and plaintiffs intended to suffer a detriment to receive a
benefit and each agreed to exchange those detriments and benefits. The parties' agreement was a
"contract for hire" the WDCA was designed to cover.
Defendant's argument that there was no "meeting of the minds" is without merit.
Mutuality of agreement, or a meeting of the minds, means that "[t]here must be a meeting of the
minds on all the material facts in order to form a valid agreement, and whether such a meeting of
the minds occurred is judged by an objective standard, looking to the express words of the parties
and their visible acts." Groulx v Carlson, 176 Mich App 484, 491; 440 NW2d 644 (1989).
Defendant's actions here, notably its receipt of plaintiffs' work, belie its claim that a meeting of
the minds on the material facts was not present here. A meeting of the minds can be found from
performance and acquiescence in that performance.
To the extent that defendant also argues that fraud or fraud in the inducement voids any
"contract of hire" that could impose on it an obligation to pay plaintiffs worker's compensation
benefits, this argument does not offer defendant the relief it seeks. Defendant relies on
traditional contract law for this argument because the WDCA is silent, with certain inapplicable
exceptions,5 on the effect of a false representation.
However, where the WDCA is silent on the effect of a false representation, our Supreme
Court has not turned to principles of contract law, such as the fraud and fraud in the inducement
principles offered by defendant here, but has instead upheld the award of benefits to the injured
employee. In Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 257; 262 NW2d 629
(1978), where the plaintiff misrepresented his preexisting health condition in applying for
employment but did not suffer from an occupational disease, see MCL 418.431, the Court held
the following:
5
See MCL 418.431 (false representation about occupational disease), MCL 418.383 (false
representation in a notice of injury or claim), and MCL 418.222(6) (false representation made in
an application for benefits).
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While we can appreciate defendant employer's frustration at having
employed plaintiff under a false belief arising from his misrepresentation, and
now being held liable for his worker's compensation benefits, as well as plaintiff
employee's compulsion to misrepresent in order to secure a livelihood, the fact of
the matter is that [MCL 418.431] does not permit the employer to avoid
compensation payments.
In Dressler, Justice Coleman, in a separate opinion, argued that "[i]t strains credibility to
conclude that the Legislature deliberated and decided to permit misrepresentation in single
injury/aggravation cases and not permit it in occupational disease cases," id. a 260, but the
majority did not adopt Justice Coleman's reasoning. Hence, although Dressler concerns a
different type of representation by an employee, the majority opinion in Dressler instructs that
where the WDCA is silent on the effect of a false representation, an award of benefits is not
precluded by the misrepresentation.
In summary, we hold that the employment agreements between plaintiffs and defendant
constituted a "contract of hire" as is required by subsection 161(1)(l) to establish the employeremployee relationship. Because the WDCA is silent on the effect of a false representation, an
award of benefits to plaintiffs is not precluded by their misrepresentations about their
immigration status.
Having determined that including plaintiffs as "employees" in the service of another
under a contract of hire who, in order to obtain compensation for work-related injuries, are not
only eligible but also required to invoke the remedy provided by the WDCA, we next turn to the
question whether wage-loss benefits to plaintiffs must nonetheless be suspended under the
"commission of a crime" language in subsection 361(1).
B. Construction of WDCA Subsection 361(1)
Defendant argues that plaintiffs are not entitled to weekly wage-loss benefits in light of
section 361 of the act, which absolves an employer of liability for such periods wherein the
employee is unable to work "because of the commission of a crime." We agree.
The WDCA provides for suspension of weekly wage-loss benefits when the employee is
unable to obtain or perform work because of imprisonment or commission of a crime.6
Subsection 361(1) of the act provides in pertinent part the following:
While the incapacity for work resulting from a personal injury is partial,
the employer shall pay, or cause to be paid to the injured employee weekly
compensation equal to 80% of the difference between the injured employee's
6
WDCA subsection 361(1) applies only to "weekly compensation." Defendant remains
responsible to pay for plaintiffs' reasonable and necessary medical treatments pursuant to MCL
418.315.
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after-tax average weekly wage before the personal injury and the after-tax average
weekly wage which the injured employee is able to earn after the personal injury,
but not more than the maximum weekly rate of compensation, as determined
under section 355. Compensation shall be paid for the duration of the disability.
However, an employer shall not be liable for compensation under section 351,
371(1), or this subsection for such periods of time that the employee is unable to
obtain or perform work because of imprisonment or commission of a crime.
[Emphasis added.]
As noted above, we are to read statutes for their plain meaning. See Robertson, supra.
Unless defined in the statute, every word or phrase of a statute should be accorded its plain and
ordinary meaning, considering the context in which the words are used. MCL 8.3a; Roberston,
supra at 748. If the legislative intent cannot be determined from the statute itself, then a court
may consult dictionary definitions. Koontz, supra; Lumley, supra.
The last sentence of subsection 361(1) was added in 1985 (1985 PA 103). Before
this legislation, a criminal conviction would not have disqualified a worker from receiving wageloss benefits. See, e.g., DeMars v Roadway Express, Inc, 99 Mich App 842; 298 NW2d 645
(1980). A worker could draw benefits even while in prison. Sims v R D Brooks, Inc, 389 Mich
91; 204 NW2d 139 (1973). The amendment of subsection 361(1) was obviously intended to
change the law and to require a connection between an employee's ability to work for his
employer and his eligibility for wage-loss benefits. Sweatt v Dep't of Corrections, 247 Mich App
555, 578-579; 637 NW2d 811 (2001) (Griffin, J., dissenting).
Subsection 361(1) does not require conviction of a crime but precludes benefits when the
worker is imprisoned or has committed a crime and is unable to obtain or perform work because
of the commission of a crime. There is no statutory definition of "commission." The Random
House Webster's College Dictionary (2000) defines "commit" as "to do; perform; perpetrate."
Therefore, subsection 361(1), when plainly read, does not require a person to be convicted or
even to be formally charged with a crime.
Further, no restrictions are placed in subsection 361(1) concerning when the "crime" must
be committed or whether it must be a violation of a particular code. Rather, the plain language of
the statute applies whenever commission of a "crime" prevents the person from obtaining or
performing work. Fortunately, a longstanding definition of that word is provided in our statute
books. MCL 750.5 provides the following definition of "crime":
"Crime" means an act or omission forbidden by law which is not
designated as a civil infraction, and which is punishable upon conviction by any 1
or more of the following:
(a) Imprisonment.
(b) Fine not designated a civil fine.
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(c) Removal from office.
(d) Disqualification to hold an office of trust, honor, or profit under the
state.
(e) Other penal discipline.
This statutory definition provides no basis for limiting the scope of subsection 361(1) to state
crimes. There can be no doubt that the word "crime" as used in subsection 361(1) refers to
federal as well as state crimes.
The decision by the United States Supreme Court in Hoffman Plastic Compounds, Inc v
Nat'l Labor Relations Bd, 535 US 137; 122 S Ct 1275; 152 L Ed 2d 271 (2002), is highly
instructive here. Both of these appeals involve federal crimes, and the highest court in the land
speaks with authority when it comes to determining what is a federal crime and when a violation
has occurred.
In Hoffman, supra, Jose Castro, born in Mexico, was hired by the petitioner on the basis
of false documents that appeared to verify his authorization to work in the United States.
Following a union-organizing campaign, Castro and others were laid off. The National Labor
Relations Board found the layoffs to be an unfair labor practice and ordered back pay for Castro
and others. On review, the Supreme Court held that the federal immigration policy, as expressed
by Congress in the Immigration Reform and Control Act of 1986 (IRCA), foreclosed the board
from awarding back pay to an undocumented alien who has never been legally authorized to
work in the United States.
Writing for the majority of the Court, Chief Justice Rehnquist explained:
In 1986, . . . Congress enacted IRCA, a comprehensive scheme prohibiting
the employment of illegal aliens in the United States. § 101(a)(1), 100 Stat 3360,
8 USC 1324a. As we have previously noted, IRCA "forcefully" made combating
the employment of illegal aliens central to "[t]he policy of immigration law." INS
v Nat'l Center for Immigrants' Rights, Inc, 502 US 183, 194, n 8; 112 S Ct 551;
116 L Ed 2d 546 (1991). It did so by establishing an extensive "employment
verification system," § 1324a(a)(1), designed to deny employment to aliens who
(a) are not lawfully present in the United States, or (b) are not lawfully authorized
to work in the United States, § 1324a(h)(3). . . .
Similarly, if an employer unknowingly hires an unauthorized alien, or if
the alien becomes unauthorized while employed, the employer is compelled to
discharge the worker upon discovery of the worker's undocumented status. §
1324a(a)(2). Employers who violate IRCA are punished by civil fines, §
1324a(e)(4)(A), and may be subject to criminal prosecution, § 1324a(f)(1). IRCA
also makes it a crime for an unauthorized alien to subvert the employer
verification system by tendering fraudulent documents. § 1324c(a). It thus
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prohibits aliens from using or attempting to use "any forged, counterfeit, altered,
or falsely made document" or "any document lawfully issued to or with respect to
a person other than the possessor" for purposes of obtaining employment in the
United States. §§ 1324c(a)(1)-(3). Aliens who use or attempt to use such
documents are subject to fines and criminal prosecution. 18 USC 1546(b). There
is no dispute that Castro's use of false documents to obtain employment with
Hoffman violated these provisions. [Id. at 147-148 (emphasis added).]
As in Hoffman, it is undisputed that plaintiffs here acquired and presented false
documentation in order to obtain employment with defendant. Hence, in each case, the
magistrate appropriately suspended weekly wage-loss benefits from the time the crime affected
plaintiffs' ability to work until such time as authorized documentation to work could be acquired.
In Sanchez, after taking note of plaintiff 's admitted use of an invalid social security card,
the magistrate stated, "I take judicial notice of the fact that working in the United States without a
valid Social Security card or work visa is illegal." Similarly, in Vazquez, the magistrate declared,
"there was no question at trial regarding the illegal status of Mr. Vazquez. He testified he
illegally purchased his fake Social Security card and alien resident card on the streets of
Chicago." The magistrate again took judicial notice of the fact that "working in the United States
without a valid Social Security card, or without permission of the United States government, is
illegal." She found that "Mr. Vazquez's illegal status prevents Eagle Alloy from deciding to take
him back or attempt to find him work elsewhere."
In Sanchez, a panel of the WCAC reversed this result by a two-to-one vote.
Subsequently, in Vazquez, a majority of the seven-member appellate commission sitting en banc
affirmed the magistrate's ruling with modification.
We hold that the magistrate correctly reasoned that plaintiffs' admitted use of fake
documents to obtain employment constituted "commission of a crime." We further hold that the
magistrate correctly reasoned that when defendant learned of plaintiffs' employment status and
could not legally retain them as employees or find them other work, plaintiffs became unable to
obtain or perform work "because of" the commission of crime within the meaning of subsection
361(1). This construction most accurately reflects the two-pronged language of the statute,
requiring not only the commission of a crime but also that the employee is unable to work
because of that crime. Further, this result is in accord with the policy of the federal government
as set forth in Hoffman, as well as the policy of the state of Michigan indicated by the
Legislature's adoption of the last sentence of subsection 361(1).
Accordingly, in Sanchez, Docket No. 238003, we reverse the part of the WCAC's
decision that granted weekly wage-loss benefits to Sanchez beyond the date on which his
employment status was discovered and affirm the grant of benefits before that date. Applying the
same reasoning to Vazquez, Docket No. 239592, we reverse the part of the WCAC's decision that
denied plaintiff Vazquez weekly wage-loss benefits up to the date on which his employment
status was confirmed and affirm the part denying benefits after that date. If plaintiffs obtain
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proper permission to live and work in the United States, then subsection 361(1) would no longer
operate to suspend their wage-loss benefits.
IV. Conclusion
In Sanchez, Docket No. 238003, we affirm the holding of the WCAC that Sanchez is an
"employee" for purposes of the WDCA. We reverse the part of the WCAC's decision that
granted weekly wage-loss benefits to Sanchez beyond the date on which his employment status
was discovered and affirm the grant of benefits before that date.
In Vazquez, Docket No. 239592, in which the WCAC expressly addressed only the proper
construction of subsection 361(1), we reverse the part of the WCAC's decision that denied
Vazquez weekly wage-loss benefits up to the date on which his employment status was
confirmed and affirm the part denying benefits after that date.
/s/ Jane E. Markey
/s/ Mark J. Cavanagh
/s/ Robert P. Griffin
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