N.Y. Court Rules That Undocumented Workers Are Entitled To Damages For Lost Wages In State Tort Actions

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

N.Y. COURT RULES THAT UNDOCUMENTED WORKERS ARE ENTITLED TO DAMAGES FOR LOST WAGES IN STATE TORT ACTIONS
Immigrants' Rights Update, Vol. 17, No. 4, July 15, 2003

A New York State trial court has determined that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), does not prevent the state of New York from awarding damages, including lost wages, to an individual who is not lawfully in the United States. (For a summary of the Hoffman decision, see “Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing,” Immigrants’ Rights Update, Apr. 12, 2002, p. 10.)

After Gorgonio Balbuena was injured at a construction site where he was working, he filed a worker’s compensation claim and sued a number of entities, alleging that they had been negligent and had violated various New York labor laws. Citing Hoffman, one of the defendants, Taman Management Corporation, moved to have Balbuena’s claim for lost earnings dismissed on the ground that Balbuena is unauthorized to work in the U.S. The court rejected that motion and found that “[n]othing in the Supreme Court’s decision states, or even implies, that its holding would be applicable to tort actions brought under state common law.” It concluded that “in this state tort matter, [the state court] is not bound by Hoffman” and that nothing in Hoffman “would preclude the recovery of lost wages which the undocumented worker might have legally earned in another country.”

Nevertheless, the court allowed the defendant to inquire into Balbuena’s immigration status. The defendant sought “documentation that Balbuena was authorized to be employed in the United States at the time of the accident.” In a pleading filed with the court, the plaintiff’s attorney had stated that his client “is not a documented worker.” Despite denying the defendant’s motion for partial summary judgment, the court ordered Balbuena to respond to the defendant’s request for documentation, citing New York State cases that hold that a plaintiff’s immigration status is relevant to claims for lost earnings.

Advocates should be vigilant in protecting workers from having to answer questions about their immigration status. Several federal courts have refused to allow employers to inquire into litigants’ immigration status, even when that information might be relevant. (For a discussion of those cases, see “Hoffman: Lower Courts Limit Impact of High Court’s Decision Barring Undocumented Workers from Receiving Back Pay,” IRU, May 30, 2002, and “Courts Continue Rejecting Defendants’ Post-Hoffman Inquiries into Plaintiffs’ Immigration Status,” IRU, Oct. 21, 2002.) Courts have recognized the chilling effect that such inquiries have on workers’ ability to vindicate their rights.

Because in this case there appeared to be no evidence—other than the lawyer’s admission that Balbuena is undocumented—that Balbuena lacked work authorization, this case serves as a reminder of the importance of guarding against defendants’ engaging in fishing expeditions concerning plaintiffs’ immigration status.

Balbuena v. IDR Realty, LLC, et al., Case No. 110868/2000 (N.Y. Sup. Ct. 2003).