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In a case of first impression, the New Hampshire
Supreme Court has ruled that an undocumented worker's lost earning
capacity may be measured by what the worker could have earned in the
United States only if the employer knew or should have known of the
worker's undocumented status at the time the worker was hired.
The plaintiff in the case, a citizen of Brazil
whom the defendants suspect is not eligible to be employed in the U.S.,
was injured while working at a Wal-Mart construction site when an aerial
lift tipped over and fell on him. He filed a civil suit for damages
resulting from his injuries, including a claim for lost earnings in the
United States, against the general contractor of the construction
project, two project subcontractors, and the equipment rental company
that owned the aerial lift and rented it to the contractor that was
operating it.
Before the case was tried, the defendants
filed motions with the court requesting that the plaintiff be prohibited
from making a claim for lost earning capacity or that the trial court
limit the scope of his claim. The plaintiff filed responsive motions
requesting that any evidence related to his immigration status be
excluded because it is of limited relevance and would be unduly
prejudicial.
The trial court transferred the matter to the
Supreme Court of New Hampshire, asking that the court answer three
questions: (1) "Is the plaintiff permitted to introduce evidence and
make a claim of lost wage/earning capacity when he is not legally
entitled to work in the United States at the time of his accident?"
(2) "If he is entitled to bring a claim for lost wage/earnings [sic],
should those be limited to earnings that he could anticipate receiving
in his country of full citizenship?"; and (3) "To the extent a lost
wage/earning capacity claim is introduced, are the defendants entitled
to introduce testimony of the plaintiff's immigration status and the
fact that he was not legally entitled to work in this country as
evidence to rebut the damage claim?"
The court, citing Mendoza v. Monmouth
Recycling Corp., 288 N.J. Super. 240 (N.J. Super. Ct. App. Div.
1996), answered the first question in the affirmative. The court held
that an undocumented immigrant can make a claim for lost earnings in
addition to any other claims that he may make under tort law because
"surely the effect on the worker of his injury has nothing to do with
his citizenship or immigration status."
With respect to the second question, the
defendants argued that lost wages must be measured by what an
undocumented immigrant could have earned working in his or her country
of origin. The defendants cited Hoffman Plastic Compounds, Inc. v.
NLRB, 535 U.S. 137 (2002), in support of their position. (For a
summary of the decision in Hoffman, see "Supreme
Court Bars Undocumented Worker from Receiving Back Pay Remedy for
Unlawful Firing," Immigrants'
Rights Update, Apr. 12, 2002, p. 10.) In answering the second
question, the court noted that Hoffman's effect on an
undocumented worker's ability to recover lost wages under state law has
resulted in inconsistent decisions. Some courts have held that
Hoffman precludes an undocumented worker from recovering lost wages
and that such an award would run counter to federal immigration
policies. The court cited the following cases with this holding:
Veliz v. Rental Service Corp. USA, Inc., 313 F. Supp. 2d 1317 (M.D.
Fla. 2003) (relying on Hoffman, the federal district court held
that a laborer's undocumented status precluded an award of lost U.S.
wages where the worker obtained employment by using fraudulent
identification); Hernandez-Cortez v. Hernandez, 2003 U.S. Dist.
LEXIS 19780 (D. Kan. Nov. 4, 2003) (disallowed undocumented immigrant's
claim for lost U.S. earnings); Majlinger v. Cassino Contracting Corp.,
1 Misc. 3d 659 (Sup. Ct. 2003) (holding that the Hoffman decision
would require the court to conclude that a plaintiff who cannot prove
legal authorization to work cannot recover lost wages); Sanango v.
200 East 16th Street Housing Corporation, 788 N.Y.S. 2d 314 (App.
Div. 2004) (court vacated a jury award for lost wages to an undocumented
worker and remanded for a finding on earnings the plaintiff would earn
in his country of origin). (For a summary of the decision in Sanango,
see "N.Y. Court
Holds That Undocumented Workers Can Recover Lost Wages, but Only the
Amount They Would Have Earned in Their Home Country," IRU, Feb. 10,
2005, p. 9.)
The court also noted that some courts have
awarded undocumented workers lost U.S. earnings notwithstanding the
Hoffman decision. For example, in Madeira v. Affordable Housing
Foundation, Inc. and Mountain Developers Associates, LLC, 315 F.
Supp. 2d 504 (S.D.N.Y. 2004), the court, disagreeing with Majlinger
and Veliz, upheld a jury's award of lost earnings to an
undocumented worker. In fact, cases prior to the Hoffman
decision have produced conflicting results, including Rodriguez v.
Kline, 186 Cal. App. 3d 1145 (Ct. App. 1986) (undocumented plaintiff
can only recover lost U.S. earnings if he can demonstrate he has taken
steps to correct his "deportable condition"); and Hernandez v. M/V
Rajaan, 848 F.2d 498 (5th Cir. 1988) (allowing undocumented
plaintiff who was injured on the job to recover lost U.S. wages, unless
the employer can establish that the plaintiff was about to be or surely
would be deported).
After reviewing the case law, the New
Hampshire Supreme Court stated that it presumed Hoffman not to be
controlling and engaged in a public policy analysis -- namely, that
allowing the remedy may provide a marginal incentive for undocumented
workers to come to the U.S., while not permitting such a remedy may
create an incentive for employers to hire undocumented workers and take
the relatively minor risk of being sanctioned under the federal
immigration statute's "employer sanctions" provision. Singh v. Jutla,
214 F. Supp. 1056, 1062 (N.D. Cal. 2002); Patel v. Quality Inn South,
816 F.2d 700 (11th Cir. 1988) (see "Court
Denies Motion to Dismiss in Retaliation Case Where Worker Was Reported
to INS," IRU,
Oct. 21, 2002, p. 10).
In answering the second question, the court
held that "generally an [undocumented worker] may not recover lost
United States earnings, because such earnings may be realized only if
that [worker] engages in unlawful employment." However, the court
stated that "[t]o refuse to allow recovery against a person responsible
for an [undocumented worker's] employment who knew or should have known
of the [worker's] status would provide an incentive for such persons to
target [undocumented workers] for employment in the most dangerous jobs
or to provide [undocumented workers] with substandard working
conditions. It would allow such persons to treat [undocumented workers]
as disposable commodities who may be replaced the moment they are
damaged."
As a matter of public policy, the court held
that an employer may be held liable for U.S. wages if the plaintiff
worker can show that the employer knew or should have known of the
worker's unauthorized status, yet continued to employ the worker. The
court found that awarding undocumented workers with lost earnings, under
limited circumstances, would not undermine the nation's immigration
laws. Finally, as to the third question, the court held that evidence
of a plaintiff's immigration status, while irrelevant to the issue of
liability, is relevant to the issue of lost earnings and is therefore
admissible.
While it is evident that the court seems to
recognize the underlying reality of how undocumented workers are often
recruited and exploited by employers and subcontractors, particularly in
allowing awards of lost earnings in situations where the employer hired
a worker knowing the worker was not authorized to be employed in the
U.S., on the whole the court's decision is quite troubling. In
particular, the court held that, in general, undocumented workers may
not recover lost earnings at the U.S. wage level, and instead that
workers are relegated to being awarded the substantially lower wages
they would have earned in their home countries.
It is also disturbing that the New Hampshire
Supreme Court summarily decided, without engaging in extensive analysis,
that a plaintiff's immigration status is relevant to the amount of
damages he or she can be awarded. This decision now allows defendants
in New Hampshire to conduct inquiries into plaintiffs' immigration
statuses, which will result in the intimidation of plaintiffs and have a
chilling effect on all immigrants considering whether to file suit
against irresponsible employers.
Wudson
Rosa v. Partners in Progress, Inc., et al., 868 A.2d 994 (N.H.
2005).
--By Monica Guizar, NILC
employment policy attorney
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