Academic journal article Labor Law Journal

Undocumented Workers: State Courts' Novel Wage Remedy for Workplace Injuries

Academic journal article Labor Law Journal

Undocumented Workers: State Courts' Novel Wage Remedy for Workplace Injuries

Article excerpt

When an undocumented immigrant is injured on the job, what right does he have to recover lost earnings? Recently, a New York court fashioned a somewhat novel answer, denying the worker recovery of wages at U.S. wage rates but allowing recovery at the rate he would have earned in his country of origin.1 Shortly thereafter, the Supreme Court of New Hampshire held that an undocumented worker could recover lost earnings at U.S. wage rates where the employer hired the worker knowing that he was undocumented.2

In reaching its decision to deny recovery at U.S. wage rates, the New York court relied on the Immigration Reform and Control Act of 19863 (IRCA) and the Supreme Court's 2002 decision in Huffman Plastic Compounds, Inc. v. NLRB.4 In Huffman, the Court held that federal immigration policy foreclosed the National Labor Relations Board from awarding backpay to an undocumented immigrant who was never legally authorized to work in the U.S.

Unanswered questions. The right of the estimated 10 million undocumented workers in this country to recover lost wages under state law is only one of many questions regarding their entitlement to remedies under federal and state labor and employment laws left unanswered by the Supreme Court's decision in Huffman. Beyond backpay and reinstatement, does IRCA, as interpreted in Huffman, bar an undocumented worker's entitlement to remedies provided under the myriad of federal and state labor and employment laws? Does allowing undocumented workers to pursue wage and other claims encourage illegal immigration, or does it deter the hiring of undocumented workers? Should fault (or responsibility) for the illegal hiring determine the outcome?


Sanango v 200 East 16th St Housing Corp

While working as a laborer on a construction project in New York City, Arcenio Sanango, an undocumented immigrant, was injured in a fall from a ladder. He sued the owner of the work site and the contractor who employed him in state court under state tort law. A jury awarded him in excess of $2,000,000 in damages for pain and suffering and $96,000 for lost wages, based on evidence of what he would have been able to earn in the U.S. but for his injuries.

On appeal, the court considered whether Sanango's status as an undocumented immigrant barred or limited his recovery for lost earnings in light of IRCA and the decision in Hoffman. The court held that the state law was preempted by IRCA to the extent that it would allow recovery of wages an undocumented worker would have earned illegally in the U.S. Although Hoffman involved the NLRA, it had "critical implications" for a state law case, the court reasoned. An award of damages based on what Sanango might have earned unlawfully in the U.S. unduly trenched upon IRCA federal immigration policy in the same manner as the backpay award under the NLRA in Hoffman. An award would encourage future IRCA violations since mitigation of damages is required under both federal labor and New York tort law.5

Employer's knowledge. According to the court, responsibility for the unlawful hiring-either because the employer failed to request documentation of Sanango's right to work or because he tendered false documentation-is irrelevant. "[WJe believe that plaintiff's acceptance of unlawful employment should be deemed to constitute misconduct contravening IRCA's policies whether or not he submitted false documents so as to expose himself to potential criminal liability."

Prevailing wage in country of origin. The court went on to hold, however, that an undocumented immigrant could recover damages for lost earnings based on the prevailing wage in his country of origin because it was "unaware [] of any federal policy that would be offended" by such an award. The court remanded the case for a new trial on the issue of past and future lost earnings measured by the wages prevailing in the country of origin. Further, the court noted that any consideration of the issue of mitigation of lost earnings would be limited to proof of the employment opportunities available to Sanango, and of his mitigation efforts, in his home country. …

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