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The issue of undocumented workers has entered the forefront of American political, economic and judicial life. In 2000, the Immigration and Naturalization Service (since replaced by U.S. Citizenship and Immigration Services) estimated that there were 7 million illegal immigrants living in the United States. These numbers have undoubtedly increased in recent years, leading to tensions in local communities and governments throughout the United States. As part of this tense equation, courts must consider what effect, if any, a party’s illegal immigrant status should have on his or her rights and remedies. In particular, courts throughout the country have been confronted with the issue of whether an illegal or undocumented worker can recover lost U.S. wages in personal injury actions or whether the worker is limited to recovering lost wages based on the wage rate in the worker’s country of origin. In courts that have considered this issue, there has been a great deal of variety in outcomes across states and in the federal courts. The U.S. Supreme Court’s decision in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002), finding that the federal Immigration Reform and Control Act of 1986, 8 U.S.C. 1324a et seq., precludes a National Labor Relations Board award of back pay to an illegal immigrant, has unleashed uncertainty throughout the country. The IRCA requires employers to verify the identity and eligibility of newly hired workers and requires employers to discharge workers if they discover a worker’s undocumented status. 8 U.S.C. 1324a(b), (a)(2). The act subjects employers that violate its provisions to civil fines and possible criminal prosecution. 8 U.S.C. 1324a(e)(4)(A), (f)(1). In addition, aliens who use or attempt to use fraudulent documents to obtain employment are subject to fines and criminal prosecution. 8 U.S.C. 1324c(a); 18 U.S.C. 1546(b). In Hoffman, an employer violated the National Labor Relations Act (NLRA) by laying off an illegal alien for supporting a union-organizing campaign. The employee had procured employment with Hoffman Plastic Compounds by tendering a friend’s birth certificate. Following his layoff from Hoffman, the employee had used this birth certificate to fraudulently obtain a driver’s license and birth certificate in order to procure employment. The Supreme Court ruled that the NLRB had no discretion to award back pay to this undocumented worker because “awarding backpay to illegal aliens runs counter to policies underlying IRCA.” Hoffman, 535 U.S. at 149. The court said that “awarding backpay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations” because the alien “cannot mitigate damages, a duty our cases require, without triggering new IRCA violations.” Id. at 150-151. Therefore, the Supreme Court concluded, “allowing the NLRB to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA.” Id. at 151. Nationally, since Hoffman, the issue of illegal immigrants and lost-wage recovery remains largely unsettled. The highest courts in California, Texas, New York, Florida and Illinois — states with high illegal immigrant populations — have not yet addressed this subject. In New York, two intermediate appellate courts split on whether an undocumented worker can recover lost wages at the U.S. wage rate. In New Hampshire, the state Supreme Court recently held that an illegal alien can recover lost U.S. wages in certain circumstances. In California, the legislature responded to Hoffman by passing a statute intended to afford illegal aliens protections identical to those available to U.S. workers. Calif. Civ. Code � 3339 (2005). Despite this statute, a California appellate court denied lost U.S. wages recovery to an undocumented worker. Conversely, in Texas, an appeals court allowed such recovery. In the realm of workers’ compensation, states generally include undocumented workers in their compensation schemes. However, some courts allow for the suspension of certain benefits and preclusion of others for undocumented workers. In New York, the Appellate Division 1st Department held that an undocumented worker can recover for lost wages based only on what he would have been able to earn in his home country. Balbuena v. IDR Realty LLC, 787 N.Y.S.2d 35 (N.Y. App. Div. 1st Dep’t 2004); Sanango v. 200 East 16th Street Housing Corp., 788 N.Y.S.2d 314 (N.Y. App. Div. 1st Dep’t 2004). The court found that an award of damages for lost U.S. wages an illegal worker might have earned unlawfully, but for his injury, would “unduly trench upon” IRCA’s federal immigration policy. Id. at 318. ( Balbuena has been set for arguments on Jan. 11 before the New York Court of Appeals, the state’s highest court. The parties in Sanango settled.) Conversely, in Majlinger v. Cassino Contracting Corp., No. 2003-09184, 2005 N.Y. App. Div. Lexis 9235 (N.Y. App. Div. 2d Dep’t Sept. 19, 2005), a different New York Appellate Division court held that an illegal alien could recover lost U.S. wages. The court held that through the IRCA, Congress neither expressly pre-empted awards of lost wages to undocumented aliens nor entirely occupied the fields of workplace safety and common law torts. The court noted that the U.S. Supreme Court gave no indication in Hoffman that an illegal alien’s right to recover lost wages should be limited. In Rosa v. Partners in Progress, 152 N.H. 6 (2005), the New Hampshire Supreme Court concluded that Hoffman was not controlling and that the IRCA does not preempt New Hampshire common law. Examining both sides of the issue, the court held that, generally, “an illegal alien may not recover lost United States earnings, because such earnings may be realized only if that illegal alien engages in unlawful employment.” Id. at 13. However, tort deterrence principles dictated that refusing to allow recovery “would provide an incentive for such persons to target illegal aliens for employment in the most dangerous jobs or to provide illegal aliens with substandard working conditions.” Id. Therefore, the court allowed recovery of U.S. wages by an illegal alien provided the alien could show that the employer knew, or should have known, of the employee’s immigration status. In 2002, the California Legislature voted in direct response to the Supreme Court’s decision in Hoffman to provide all state law remedies to workers regardless of their immigration status. Calif. Civ. Code �3339(a) (2005). In addition, when enforcing labor laws, no inquiry is permitted into a person’s immigration status. Calif. Civ. Code �3339(b). The proponents of the bill argued that the Hoffman decision has the potential effect of undercutting state remedies for illegal labor practices, and that this measure was needed to keep California’s labor and civil rights remedies intact and enhance compliance. To date, no California court has addressed the effect of this statue on an illegal immigrant worker’s right to lost U.S. wages. In an unpublished opinion, Uribe v. Aviles, No. B166839, 2004 Cal. App. Unpub. Lexis 9698 (Calif. Ct. App. Oct. 26, 2004), a California intermediate appellate court, without discussion, noted that the trial court had properly precluded Jose de Jesus Uribe, a street-sweeper operator injured by a drunken driver, from introducing evidence of future lost wages at California rates. The court cited Rodriguez v. Kline, 232 Cal. Rptr. 157, 158 (Calif. Ct. App. 1986), as an example. In Rodriguez, the court held that a defendant bears the initial burden of producing proof that the plaintiff is an alien who is subject to deportation, and then the burden shifts to the plaintiff to demonstrate that he has taken steps that will correct his deportable condition. If the plaintiff is successful, he can recover lost U.S. wages; otherwise, the plaintiff’s recovery is limited to what he could have earned in his home country. The Aviles court did not address, and the plaintiffs apparently did not raise, the effect of Calif. Civ. Code �3339 on this issue. RECOVERY OF WAGES IN TEXAS A Texas intermediate appeals court distinguished Hoffman and allowed recovery of U.S. wages in Tyson Foods Inc. v. Guzman, 116 S.W.3d 233 (Texas App.-Tyler 2003). The court said that Hoffman was a narrow ruling that applied only to an undocumented alien worker’s remedy for an employer’s violation of NLRA and did not apply to common law personal injury damages. Pre- Hoffman precedent demonstrated that Texas law does not require citizenship or the possession of immigration work authorization as a prerequisite to recovering damages for lost earning capacity. Therefore, the fact that the plaintiff was not a U.S. citizen at the time of the accident had no bearing on his ability to recover damages for lost earning capacity at the U.S. wage rate. Courts have found that an illegal alien can claim benefits under state workers’ compensation acts despite the IRCA and the Supreme Court’s decision in Hoffman. See, e.g., Design Kitchen and Baths v. Lagos, No. 82, 2005 Md. Lexis 545 (Md. Sept. 12, 2005); Cherokee Industries Inc. v. Alvarez, 84 P.3d 798 (Okla. Ct. App. 2003); The Reinforced Earth Co. v. Workers’ Compensation Appeal Board, 570 Pa. 464 (Pa. 2002). Workers’ compensation acts typically include aliens in their definition of employees who are covered under the state’s scheme. See, e.g., Minn. Laws � 176.011 (2004). However, in Michigan, an intermediate appellate court found that weekly wage loss benefits could be suspended because undocumented workers committed a crime by presenting false documentation in order to obtain employment. Sanchez v. WCAC Eagle Alloy Inc., 658 N.W.2d 510 (Mich. Ct. App. 2003) (suspending wage loss benefits in accord with federal policy set forth in Hoffman because undocumented workers are unable to perform or obtain work because of their illegal unauthorized status). See also The Reinforced Earth Co. (employer may be able to suspend total disability compensation benefits if it can show employee cannot accept other employment because of his status). In addition, some courts have held that certain benefits under workers’ compensation are not available to illegal aliens. See, e.g., Cherokee Industries Inc. (reinstatement remedy if subject to retaliatory firing unavailable to undocumented worker). FEDERAL COURTS U.S. district courts in New York, Florida and Kansas have considered the issue of illegal immigrants and lost wage recovery and have come to varying conclusions. The Southern District of New York concluded that a plaintiff’s alien status does not prevent him from recovering lost U.S. wages for a defendant’s violations of New York labor law. Madeira v. Affordable Housing Foundation Inc., 315 F. Supp. 2d 504, 507 (S.D.N.Y. 2004). The court concluded that Hoffman was irrelevant and did not preclude an award of lost U.S. wages. The jury should “consider plaintiff’s alien status in determining whether he would have continued to work and whether that work would be in the United States or elsewhere.” Id. The Middle District of Florida came to the opposite conclusion in Veliz v. Rental Service Corp. USA, 313 F. Supp. 2d 1317 (M.D. Fla. 2003). The court, following Hoffman, found that it could not condone an award of lost wages because that would be tantamount to violating the IRCA. Further, it was irrelevant that illegal aliens were allowed to recover under the state’s workers’ compensation act because workers’ compensation is a substitute for tort liability and is a form of insurance while lost wages are another remedy available to tort victims. Similarly, in a Kansas federal court, an illegal immigrant who was injured while being smuggled into the United States was precluded from recovering lost income based on projected earnings in the United States. Hernandez-Cortez v. Hernandez, No. 01-1241, 2003 U.S. Dist. Lexis 19780 (D. Kan. Nov. 4, 2003). The court found that this result was mandated by the IRCA and the Supreme Court’s decision in Hoffman. The plaintiff could, however, recover from those responsible for his injuries and for any impact those injuries had on his ability to generate income in his home country. Illegal immigration has become a hot-button topic in the post-9/11 era of terrorism, interconnected economies and migratory work forces. Clearly, in the coming weeks, months and years, the highest courts throughout our country will be making decisions dealing with illegal immigrants that will have significant socio-economic repercussions throughout our society. John F. Parker is a partner at New York-based Mound Cotton Wollan & Greengrass, where he focuses on toxic and environmental law, as well as construction and commercial litigation. Russell Witten is an associate with the firm. Parker can be reached via e-mail at [email protected] and Witten can be reached at [email protected].

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