Undocumented workers and their families often refrain from coming forward with claims of personal injury and/or wrongful death for fear of deportation and/or incurring criminal penalties. The section below summarizes recent case law from New York’s highest court holding that undocumented immigrant workers have the right to pursue claims for future and lost wages against negligent employers.
The adjudication of the rights and privileges accorded to undocumented workers remains a very contentious issue in New York and the rest of the country. Against this backdrop, the New York Court of Appeals has ruled on the issue of whether undocumented immigrant workers may pursue claims for lost wages due to personal injury in light of the United States Supreme Court’s decision in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002) holding that the Immigration Reform and Control Act of 1986 (“IRCA”) (8 U.S.C. §1324a et seq.) precluded the National Labor Relations Board from awarding back pay to an undocumented worker as relief for the termination of his employment in violation of the National Labor Relations Act.
On February 21, 2006, in companion cases, (Balbuena v. IDR Realty L.L.C. and Majlinger v. Cassino Contracting Corp), the Court of Appeals held that illegal immigrants could pursue claims for lost wages. The Court distinguished the factual situations involved in Majlinger and Balbuena from Hoffman. In Hoffman, the undocumented worker committed a criminal act by supplying fraudulent papers to his employer. There were no such allegations in Majlinger and Balbuena. Additionally, mitigation of damages by further illegally obtained employment was not an issue in Majlinger and Balbuena because unlike the plaintiff in Hoffman, Majlinger and Balbuena alleged serious permanent injuries that impede their ability to be employed.
Although the Court recognized that an undocumented workers’ presence in the United States is impermissible under federal immigration law, it held that this violation was insufficient to deny relief to which undocumented workers were otherwise entitled. Recoveries have been denied to parties due to illegal activity; however, unlike the construction work at issue here, these situations involve cases in which the work performed itself was illegal. Neither the IRCA nor any other law makes it unlawful to be an undocumented worker, except when the immigrant obtained employment through fraudulent documentation.
Finally, the Court noted that a jury could consider a plaintiff’s immigration status as one factor in its determination of damages. The undocumented worker could produce evidence that he was in the process of obtaining the necessary documents to work in this country legally.
As similar cases work their way through state court systems and inevitably the United States Supreme Court, a clearer picture will begin to emerge nationally on the state of the law in this area. This issue is at the forefront of the American political and social landscape, and we are optimistic that other states’ highest courts follow suit and continue to issue decisions which reaffirm certain inalienable rights of relief for injured workers and their families.