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A Manhattan judge has ruled that the federal Immigration Reform and Control Act does not preclude a group of illegal immigrants from pursuing a claim for wages that were allegedly withheld by their employer as part of an alleged money-laundering scheme. Ruling that federal laws do not conflict with New York state laws protecting undocumented workers, state Supreme Court Justice Karla Moskowitz distinguished the present case from recent ones that limited the workers’ legal rights. “The only crucial issue is whether the undocumented worker performed services for which the worker deserves compensation,” Justice Moskowitz wrote in Pineda v. Kel-Tech Construction, 600313/01. “If so, public policy requires payment so that employers do not intentionally hire undocumented workers for the express purpose of citing the workers’ undocumented status or their use of fraudulent documents as a way to avoid payment of wages.” The eight plaintiffs in the present case – seven of whom are purportedly undocumented – claim that defendant Kel-Tech Construction wrongfully withheld a total of approximately $280,000. Kel-Tech wrote each worker two checks per week, only one of which was given to the workers, the plaintiffs claim. The workers claim that Kel-Tech kept the second checks, cashed them at various bars in Queens and pocketed the proceeds. In an action filed in January 2001, the plaintiffs sought their unpaid earnings, plus interest. Kel-Tech and its guarantors set forth a number of defenses, including that the national Immigration Reform and Control Act, or IRCA, precludes workers who use false documents to obtain employment from pursuing such claims. However, Justice Moskowitz denied their request for partial summary judgment. The defendants cited, among other precedents, the U.S. Supreme Court decision in Hoffman Plastic Compounds Inc. v. National Labor Relations Board, 535 US 137. In Hoffman, the Court barred an illegal immigrant from pursuing compensation for the wages he would have earned had he not been illegally fired for union organizing. Finding that IRCA does not conflict with Labor Law �220 and other New York laws protecting the rights of illegal immigrants, Justice Moskowitz distinguished Hoffman and its progeny. The key distinction, according to Justice Moskowitz, is that the present plaintiffs are seeking wages they have already earned, not wages they would have earned. “[T]he court reads these cases as merely reinforcing the . . . conclusion that undocumented workers, no matter what type of documents they proffered or did not proffer at the time of employment, may still collect the prevailing wage under New York Labor Law section 220 for work they have performed,” Justice Moskowitz concluded. “In short, both the IRCA and the [National Labor Relations Act] work together to ensure that employers do not treat undocumented workers unfairly because, without the IRCA and the labor laws, employers could easily offer undocumented workers less protection and lower wages than legal workers and thus take these jobs away from legal workers,” she wrote. Lloyd Ambinder and Dennis Cariello of Barnes, Iaccarino, Virginia, Ambinder & Shepherd represented the plaintiffs. “When [ Hoffman] came down, many defense attorneys took the position that an illegal worker cannot sue for unpaid wages,” Mr. Ambinder said by phone yesterday. “This was the first time we saw a judge explain the difference between ‘back wages’ and ‘unpaid wages.’” Ahmed Massoud and Lisa Pashkoff of Massoud & Pashkoff represented Kel-Tech. Mr. Massoud said yesterday that his client intends to appeal. “We believe that the judge misapplied the law on several grounds,” he said. “The decision just runs contrary to Congress’ intent in enacting the Immigration Reform Act.” Mr. Massoud added that the decision “turns the law upside down at a time when there’s a great public outcry in the U.S. about illegal workers and the adverse effects they have on workers.” Mark Fass can be reached at [email protected].

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