By Stephen Yale-Loehr

Introduction

Immigration issues are becoming increasingly common and important in personal injury cases. It has been estimated that more than 600,000 undocumented individuals are employed in the U.S. construction industry alone. Millions of other noncitizen workers have only temporary work status, which may expire and thus affect the amount of damages they may be entitled to if they are hurt on the job.

This article first notes the importance of identifying a plaintiff's immigration status in a personal injury case for both discovery and damages purposes. It then summarizes the key federal and New York cases on this issue, focusing on a recent and important New York Court of Appeals decision, Balbuena v. IDR Realty LLC, 6 N.Y.3d 338 (N.Y. Feb. 21, 2006), that holds that immigration status is just one issue in determining damages in a personal injury action. The article concludes by surveying recent post-Balbuena cases.

Determining a Plaintiff's Immigration Status and Work Documents

It is not always easy determining a plaintiff's immigration status. Immigration law has been called the second most complex area of law. There are over 25 kinds of temporary immigration status. Each has its own requirements and length of time. Moreover, a person who has permanent resident status (also called a green card) can have that status taken away if he or she does something wrong, such as committing a crime. See the article "Visas: An Overview" in the seminar handbook for more details about visa categories.

Ask your client where they were born. If the answer is a country other than the United States, consult a good immigration lawyer to determine the person's status and whether it will expire. If the person is out of status, ask an immigration lawyer if the person can be placed into proper status.

As some of the cases below indicate, it is also important to determine what documents, if any, the plaintiff provided the employer as part of the I-9 work verification process. A good immigration lawyer can assist with that.

Hoffman Plastics

To understand this controversial area of law, you need to start with a 2002 U.S. Supreme Court decision, which in turn refers back to 1986, when Congress enacted the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359. In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the U.S. Supreme Court denied reinstatement and backpay to an undocumented foreign worker fired for union organizing, a violation of the National Labor Relations Act (NLRA). The Supreme Court relied heavily on the 1986 passage of IRCA as having dramatically altered the legal landscape. Before, immigration laws expressed only a "peripheral concern" with the employment of undocumented workers. See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892 (1984) (quoting DeCanas v. Bica, 424 U.S. 351, 360 (1976)). Under IRCA, all new hires must produce evidence of work authorization on Form I-9, and it is unlawful for employers to hire foreign workers they know are unauthorized to work. Noting these strictures, the Supreme Court in Hoffman refused to compel the employer to re-hire the worker or to allow a backpay award "to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud." 535 U.S. at 149. (The employee in Hoffman had tendered a false document to establish his authorization to work.)

Hoffman's implications extend well beyond the purview of the NLRA. See generally Stanley Mailman & Stephen Yale-Loehr, When Undocumented Workers Seek Compensation for Personal Injuries, N.Y. Law J., Oct. 31, 2005, at 3, reprinted in 10 Bender's Immigr. Bull 1709 (Nov. 15, 2005); Stanley Mailman & Stephen Yale-Loehr, Supreme Court Denies Backpay to Fired Undocumented Immigrants, N.Y. Law J., Apr. 22, 2002, at 3, reprinted in 7 Bender's Immigr. Bull. 495 (May 1, 2002). See also Michael Wishnie, Emerging Issues for Undocumented Workers, 6 U. Pa. J. Lab. & Emp. L. 497 (2004), reprinted in 9 Bender's Immigr. Bull. 1289 (Nov. 1, 2004).

Immigration Issues in Workers' Compensation Cases

The effect of Hoffman has been particularly debated in New York courts in workers' compensation and personal injury damage claims. In both types of cases, the claimant or plaintiff is a noncitizen who seeks remedies for a personal injury that occurred while he was employed without authorization to work under the immigration laws. And in both, the defendant argues that because the employment in which claimant sustained his injuries was prohibited by IRCA, the employee is neither entitled under Hoffman to reinstatement nor to backpay or other remedies that would ordinarily flow from a right to work.

As many of the relevant decisions note, workers' compensation is a creature of statute, a compromise that shields the employer from a tort claim for injury to the employee and the vicissitudes of court litigation. It also protects the public from the tax burden of "caring for the helpless human wreckage found [along] the trail of modern industry." Design Kitchen and Baths v. Lagos, 88 Md. 718, 732-33, 882 A.2d 817, 826 (Md. 2005) (quoting earlier Maryland cases; holding that "an undocumented worker injured in the course of his employment is a 'covered' employee under [Maryland law] and, therefore, is eligible to receive worker's compensation benefits"; and summarizing like decisions in other states). Instead, the employer pays premiums (or self insures) into a no-fault administrative system that assures the employee of medical treatment, a schedule of payments, and other remedies for a work-related injury. As reinstatement is not ordinarily the centerpiece of relief, and neither the injury nor the benefits relate to the undocumented person's status, state courts have generally found the worker entitled to substantial benefits despite a Hoffman defense. These courts have usually noted that while Hoffman invalidated an award of reinstatement and backpay, which is pay for work never performed, states provide compensation benefits for injuries suffered on the job.

Indeed, many of the state decisions have rejected the notion that IRCA as applied in Hoffman has preempted state compensation acts. See, e.g., Earth First Grading v. Gutierrez, 270 Ga. App. 328, 606 S.E.2d 332, 334 (Ga. 2004) (concurring with other courts that neither Hoffman nor IRCA intended to bar compensation benefits to "illegal aliens" and that to hold otherwise would reward employers for hiring them). The opinion in Farmers Brothers Coffee v. Workers' Compensation Appeals Board, 33 Cal. App. 4th 533, 35 Cal. Rptr. 3d 23 (Cal. Ct. App. 2005), notes that California has amended its workers' compensation law to avoid conflict with Hoffman. Under that law, immigration status is irrelevant to a compensation claim, but any reinstatement remedy prohibited by federal law is barred.

As statutes differ from state to state, outcomes often depend on how broadly the state provides coverage. The Wyoming Supreme Court denied recovery to an undocumented worker when "aliens," earlier included within the term "employee," was changed to aliens authorized to work by the Immigration and Naturalization Service. See Felix v. State ex rel. Wyoming Workers' Safety & Compensation Division, 986 P.2d 161, 163 (Wy. 1999). In Design Kitchen, supra, it wasn't clear from the Maryland statute whether "covered employees" included undocumented workers. For the public policy reasons discussed there, the Maryland Court of Appeals resolved the ambiguity in favor of coverage. But complexities abound in reconciling specific compensation provisions with Hoffman. For example, must TTD (temporary total disability) payments continue when the employee is released to do light work but is legally barred from employment by IRCA? See, e.g., Cherokee Industries, Inc. v. Alvarez, 84 P.3d 798, 800-01 (Okla. 2003) (allowing such payments) (citing Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 330 (Minn. 2003)).

Pre-Balbuena Cases

In personal injury cases, decisions more often turn on whether as a constitutional matter IRCA precludes the recovery of damages for loss of U.S. earning capacity. It does, according to two N.Y. First Department cases decided on Dec. 28, 2004: Sanango v. 200 East 16th Street Housing Corporation, 15 A.D.2d 36, and Balbuena v. IDR Realty LLC, 13 A.D.2d 285. Sanango held that "state tort law, to the extent it permits an undocumented alien to recover compensation for lost illegal wages as an element of damages, is preempted by IRCA pursuant to the Supremacy Clause of the United States Constitution." Sanango, supra at 44. It argued that an award for "lost illegal wages" as a tort remedy under state law "logically" interferes with IRCA just as much as it did, under Hoffman, as a remedy for violating the NLRA. But that argument is flawed. Hoffman simply sought to resolve a perceived inconsistency between two federal statutes; it did not profess to reach state statutes. See N.Y. Attorney General, Formal Opinion No. 2003-F-3 (Oct. 21, 2003), reproduced in 8 Bender's Immigr. Bull. 41 (Jan. 1, 2004). Nor did it hold that IRCA displaces state tort law as a constitutional matter.

The brief majority opinion in the First Department's decision in Balbuena relied on Sanango. But Justice Ellerin, dissenting in Balbuena, see 13 A.D.3d at 286, was more persuasive. She pointed to the general presumption against preemption unless Congress makes that purpose clear and manifest, particularly with respect to the historic police powers of the states, citing, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) ("Congress does not cavalierly pre-empt state-law causes of action"). And she quoted the House Judiciary Committee report on the bill enacted as IRCA: "It is not the intention of the Committee that the employer sanctions provisions of the bill be used to undermine or diminish in any way labor protections in existing law." Balbuena, 13 A.D.2d at 287 (quoting H.R. Rep. No. 99-682, pt. 1, at 58 (1986), reprinted in 1986 U.S. Code Cong. & Admin. News 5649, 5562).

The Second Department's decision in Majlinger v. Cassino Contracting Corp., 25 A.D.3d 14 (N.Y. App. Div. 2d Dep't Sept. 19, 2005), essentially adopted and effectively expanded on Justice Ellerin's dissenting opinion in Balbuena. But perhaps its greatest contribution is how it addressed the Sanango justification for denying lost wages to the undocumented worker, namely, that it would reward the injured worker with a recovery based on a "lost stream of illegal income" from an "illegal activity." Sanango at 15 A.D.2d at 43. The Majlinger decision responded, 25 A.D.3d at 29 (citations omitted):

An undocumented alien performing construction work is not an outlaw engaged in illegal activity, such as bookmaking or burglary. Rather, the work is lawful and legitimate; it simply happens to be work for which the alien is ineligible or disqualified. Remedies have been awarded to individuals in analogous positions [minor employed in violation of child labor law, who obtained the job by misrepresenting his age, was entitled to workers' compensation benefits after sustaining a work injury]; [truck driver awarded back pay despite lack of chauffeur's license]; [crane operator awarded back pay despite lack of engineer's license required by state law].

Balbuena v. IDR Realty

Both Balbuena and Majlinger were appealed to the New York Court of Appeals. The Court of Appeals consolidated the two cases. In Balbuena v. IDR Realty LLC, 6 N.Y.3d 338 (N.Y. Feb. 21, 2006), the Court of Appeals held that undocumented immigrants who have no right to work in this country but are nonetheless injured on the job can sue for lost wages under New York labor law. The 5-2 majority found that New York laws entitling workers to lost wages are not in direct conflict with federal law and are therefore not preempted.

Balbuena involved an undocumented immigrant from Mexico who was hired in September 1999 as a construction worker for Taman Management Corp. Balbuena filed a personal injury suit against IDR Realty and Dora Wechler, owners of the Manhattan construction site. IRD and Wechler then brought a third-party action against Taman.

Taman sought partial summary judgment, citing Hoffman Plastics. Judge Victoria A. Graffeo, writing for the majority, drew a sharp distinction between Hoffman and the cases before the Court of Appeals:

Whereas the undocumented alien in Hoffman criminally provided his employer with fraudulent papers purporting to be proper federal work documentation, there is no allegation in these cases that plaintiffs produced false work documents in violation of IRCA or were even asked by the employers to present the work authorization documents as required by IRCA.

6 N.Y.3d at 360.

Further, Judge Graffeo and the majority agreed that state labor law is consistent with federal law:

An absolute bar to recovery of lost wages by an undocumented worker would lessen the unscrupulous employer's potential liability to its alien workers and make it more financially attractive to hire undocumented aliens. . . . This, coupled with the fact that illegal aliens are willing to work in jobs that are more dangerous and undesirable -- and for less money -- than their legal immigrant and citizen counterparts, would actually increase employment levels of undocumented aliens, not decrease it as Congress sought by its passage of IRCA.

Id. at 359-60 (citations and footnote omitted).

The majority concluded:

[A]ny conflict with IRCA's purposes that may arise from permitting an alien's lost wage claim to proceed to trial can be alleviated by permitting a jury to consider immigration status as one factor in its determination of the damages, if any, warranted under the Labor Law. . . . An undocumented alien plaintiff could, for example, introduce proof that he had subsequently received or was in the process of obtaining the authorization documents required by IRCA and, consequently, would likely be authorized to obtain future employment in the United States. Conversely, a defendant in a Labor Law action could, for example, allege that a future wage award is not appropriate because work authorization has not been sought or approval was sought but denied. In other words, a jury's analysis of a future wage claim proffered by an undocumented alien is similar to a claim asserted by any other injured person in that the determination must be based on all of the relevant facts and circumstances presented in the case.

Id. at 362 (citation and footnote omitted).

Post-Balbuena Cases

Balbuena is good news for plaintiffs' lawyers in personal injury cases. It means that a person's immigration status is not an automatic death knell for recovering damages. But immigration issues will still be litigated as one factor in determining the amount of damages the plaintiff should receive.

For example, in Barahona v. Trustees of Columbia University, 11 Misc. 3d 1035, 816 N.Y.S.2d 851, 2006 N.Y. Misc. LEXIS 441 (N.Y. Sup. Ct. Mar. 10, 2006), a construction worker was injured while working at Columbia University. He sued. Attorneys for the defendants demanded all documents pertaining to the plaintiff's immigration status. They claimed that such information was relevant because it directly affected the plaintiff's claim for future lost earnings.

Attorneys for the plaintiff objected, maintaining that the defendants were not entitled to discovery because the plaintiff's immigration status has no relevance to any of the issues in this case. Plaintiff argued that defendants were simply looking to go on a fishing expedition with documents containing plaintiff's sensitive and personal information, which could potentially be prejudicial to plaintiff.

The court ordered the discovery. Relying on the Court of Appeals' decision in Balbuena, the state Supreme Court noted that a jury may consider immigration status as one factor in its determination of the damages, if any. The court noted that in calculating the amount of future lost earnings, a jury may consider the likelihood that plaintiff will remain in this country.

In Coque v. Wildflower Estates Developers, Inc., 31 A.D.3d 484, 818 N.Y.S.2d 546, 2006 N.Y. App. Div. LEXIS 9152 (N.Y. App. Div. 2d Dep't July 11, 2006), the plaintiff worker, who was an undocumented construction worker, was hurt when roofing tiles fell and collapsed the scaffolding on which he was working. He sued the roofer and a developer. The developer argued that the plaintiff was not entitled to recover lost wages because he lacked immigration status. The Second Department rejected that argument, ruling that under Balbuena, an award for lost wages was not preempted by immigration law simply because the worker was an undocumented alien. 818 N.Y.S.2d at 550. The court noted that lost wages could be precluded if the worker had submitted false documentation to his employer, but that no evidence of that existed in the record. Id.

The moral of Barahona and Coque: expect discovery requests from defendants concerning what documentation a worker gave his employer to prove his eligibility to work. If the worker submitted false documentation, recovery for lost wages might be precluded. Otherwise, under Balbuena, a worker's immigration status is only one factor to consider in determining damages.

Finally, in Hernandez v. 151 Sullivan Tenant Corp., 30 A.D.3d 187, 819 N.Y.S.2d 490, 2006 N.Y. App. Div. LEXIS 7513 (N.Y. App. Div. 1st Dep't June 8, 2006), appeal denied, 2006 N.Y. LEXIS 2653 (N.Y. Sept. 19, 2006), the plaintiff was an undocumented alien working on a roofing project. The hoist to which he had attached his safety rope toppled over and pulled him onto a sidewalk bridge, 50 feet below, causing multiple severe and debilitating injuries. He sued the owner of the property, the general contractor and the subcontractor. The defendants argued that the worker was not entitled to recover past and future lost wages in a personal injury action because he lacked immigration status, citing IRCA and Hoffman Plastics. The First Department rejected that argument, relying on Balbuena. The court upheld awards of $2.5 million for past pain and suffering and $3 million for future pain and suffering.

Conclusion

This area of the law is constantly evolving. Expect many more contradictory decisions as the courts try to figure out how Balbuena applies to specific fact patterns and to discovery disputes. It is important to team up with a good immigration lawyer to evaluate your client's immigration status. That will help you assess potential damages in a personal injury case. If the client is currently out of status, a good immigration attorney can assess whether the client can somehow be put into work-authorized status. If the client is currently in status, remember that some work statuses are temporary. A good immigration attorney can help keep your client in proper immigration status, which may help increase a potential damages award. A good immigration lawyer can also review a plaintiff's I-9 forms to see whether he submitted false documentation to his employer. Finally, an immigration lawyer can serve as an expert witness if necessary.

Bibliography

Key cases:

Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 845 N.E.2d 1246, 812 N.Y.S.2d 416, 2006 N.Y. LEXIS 200 (N.Y. Feb. 21, 2006)

Coque v. Wildflower Estates Developers, Inc., 31 A.D.3d 484, 818 N.Y.S.2d 546, 2006 N.Y. App. Div. LEXIS 9152 (N.Y. App. Div. 2d Dep't July 11, 2006)

Hernandez v. 151 Sullivan Tenant Corp., 30 A.D.3d 187, 819 N.Y.S.2d 490, 2006 N.Y. App. Div. LEXIS 7513 (N.Y. App. Div. 1st Dep't June 8, 2006), appeal denied, 2006 N.Y. LEXIS 2653 (N.Y. Sept. 19, 2006)

Majlinger v. Cassino Contr. Corp., 2005 25 A.D.3d 14, 802 N.Y.S.2d 56, 2005 N.Y. App. Div. LEXIS 9235 (N.Y. App. Div. 2d Dep't Sept. 19, 2005), affirmed by Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 845 N.E.2d 1246, 2006 N.Y. LEXIS 200, 812 N.Y.S.2d 416 (N.Y. Feb. 21, 2006)

Sanango v. 200 E. 16th St. Hous. Corp., 15 A.D.3d 36, 788 N.Y.S.2d 314, 2004 N.Y. App. Div. LEXIS 15637 (N.Y. App. Div. 1st Dep't Dec. 28, 2004)

Barahona v. Trustees of Columbia Univ. in City of New York, 11 Misc. 3d 1035, 816 N.Y.S.2d 851, 2006 N.Y. Misc. LEXIS 441 (N.Y. Sup. Ct. Mar. 10, 2006)

Other useful resources:

Michael Wishnie, Emerging Issues for Undocumented Workers, 6 U. Pa. J. Lab. & Emp. L. 497 (2004)

National Council for Occupational Safety and Health:
http://www.coshnetwork.org/immigrant_worker_resources.htm

National Employment Law Project: http://www.nelp.org/

I-9 form: http://www.uscis.gov/graphics/formsfee/forms/files/i-9.pdf

Information for employers: http://www.uscis.gov/graphics/services/employerinfo/index.htm

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Revised October 2006.

For more information contact Stephen Yale-Loehr at syl@millermayer.com.