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In 2002, the U.S. Supreme Court prohibited the awarding of backpay to undocumented aliens, holding that to grant the lost wages would contravene the nation’s immigration policy. Allowing the National Labor Relations Board “to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy,” Chief Justice William Rehnquist wrote in Hoffman Plastic Compounds v. NLRB, 535 US 137. “It would … condone prior violations of the immigration laws, and encourage future violations.” Saying that the Hoffman decision leaves undocumented workers unprotected and could encourage employers to hire them, two state appellate panels Tuesday interpreted the rule to allow the awarding of wages that the plaintiffs would have been able to earn in their home countries instead. In the longer of the two companion opinions, Sanango v. 200 East 16th Street Housing Corp., 2571, a unanimous, four-judge panel of the Appellate Division, 1st Department, acknowledged that the Supremacy Clause prevents New York state courts from overriding Hoffman. “We are unaware, however, of any federal policy that would be offended by awarding an undocumented alien damages for lost earnings based on the prevailing wage in the alien’s country of origin,” Justice David Friedman wrote in Sanango. Justices Eugene Nardelli, David B. Saxe and Milton L. Williams joined Justice Friedman in his opinion. Two of those four judges, Justices Friedman and Nardelli, joined Justice Peter Tom in a 3-1 majority in Balbuena v. IDR Realty, 2191, in which Justice Betty W. Ellerin dissented. In Balbuena, the court again found that Hoffman bars New York courts from awarding lost U.S. wages to undocumented workers. The court again sidestepped the decision. “Rather than simply dismiss the lost earnings claim, however, we limit plaintiff’s recovery for lost earnings to the wages he would have been able to earn in his home country, since an award based on a prevailing foreign wage would not offend any federal policy,” the majority held in its unsigned opinion for Balbuena. The two panels reserved the majority of the discussion of the implications of Hoffman for the 17-page Sanango opinion. WORKER’S FALL Sanango dealt with Ecuadoran construction worker Arcenio Sanango, who suffered severe injuries after falling 15 feet from a ladder at a work site on East 16th Street in Manhattan. Sanango had multiple fractures of the cervical and thoracic spine, a concussion, a torn rotator cuff and nerve damage to his eyes, according to his attorney, Manhattan solo practitioner Alexander Wulwick. “He’s totally disabled,” said Wulwick. Six years after the accident, he said, Sanango’s “neck is still in a brace.” A jury awarded Sanango $2.5 million for pain and suffering, as well as $96,000 for lost earnings. The defendants — the contractor that hired Sanango, Tower Building Restoration, and the owner of the work site, 200 East 16th Street Housing Corp. — appealed. At issue was whether, in light of Hoffman and the Immigration Reform and Control Act of 1986, the “plaintiff’s status as an undocumented alien bars or limits his recovery for lost earnings,” Justice Friedman wrote. The judges concluded that the U.S. Supreme Court decision, which held that the NLRB lacked discretion to award backpay to an undocumented alien as a remedy for his unlawful termination, extends to New York tort law cases, such as Sanango. The panel also addressed the lone dissent in the two companion cases, Justice Ellerin’s opinion in Balbuena. In arguing that Hoffman did not apply, and that the lost wages award should be upheld, Justice Ellerin wrote, “It is clear that the punishment of the undocumented worker, to the advantage of the employer who has violated the [Immigration Reform and Control Act], contravenes the statutes purpose and intent.” Justice Friedman wrote: “Whatever the validity of the arguments made by the Balbuena dissent, Hoffman authoritatively establishes that it subverts federal immigration policy to compensate an undocumented alien for wages that, but for some violation of his rights, he might have earned illegally in the United States.” Nothing in the federal immigration policy precludes New York state courts from awarding the wages potentially lost for work performed in the plaintiffs’ home countries, both panels held. Neither cited precedent for the compromise. Sanango’s $96,000 award represented a jury’s calculation of his lost backpay plus earnings for 29.2 years in the future. The appeals court remanded the case for recalculation based on the Ecuadoran pay scale. “I thought that that was an eminently fair conclusion,” said Sanango’s attorney, Wulwick. “The fact that it was made out of thin air, sometimes that’s by definition what compromises do.” The attorneys for the defense, Kenneth Mauro and Jennifer B. Ettenger of Mauro, Goldberg & Lilling in Great Neck, N.Y., could not be reached for comment.

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