Court says illegal workers can sue for lost wages

Associated Press Writer

February 21, 2006, 2:22 PM EST

ALBANY, N.Y. -- Immigrants toiling illegally in New York state can sue for lost wages if they are hurt on the job, the state's highest court ruled Tuesday.

In two 5-2 decisions, the Court of Appeals said an award of past and future wages to an undocumented worker does not conflict with federal immigration law.

The case stems from an accident in April 2000. Gorgonio Balbuena, an undocumented alien from Mexico, fell from a ramp at a Manhattan construction site owned by IDR Realty LLC and Dora Wechler. The worker suffered several injuries, including multiple skull fractures. Balbuena claimed his injuries rendered him incapable of working and he filed a personal injury suit against the owners.

IDR and Wechler then sued Balbuena's employer, Taman Management Corp.

Taman sought a dismissal of Balbuena's claim for lost earnings, saying he shouldn't receive an award for hundreds of thousands of dollars in wages that he could not legally earn in the United States. They argued that allowing an illegal workers to recover lost wages "condones past transgressions of immigration laws an encourages future violations."

Manhattan Supreme Court ruled in favor of Balbuena, now 47, but an appeals court modified the decision, ruling Balbuena should only be entitled to wages he could have earned in Mexico.

The Court of Appeals reinstated the state Supreme Court ruling, saying there was nothing in U.S. immigration law that prevented Balbuena from receiving lost wages since there was no proof he used fraudulent documents to get the job. The Immigration Reform and Control Act of 1986 "does not make it a crime to work without documentation," Judge Victoria Graffeo said in the decision.

Separately, the Court of Appeals said Stanislaw Majlinger, who came to the United States from Poland in 2000 on a travel visa but remained in this country after it expired, could also seek lost wages after he was injured in January 2001 while working on Staten Island for J&C Home Improvement, a subcontractor for Cassino Contracting Corp.

Attorney General Eliot Spitzer's office backed Balbuena and Majlinger, saying that barring lost wage claims would make it more financially attractive to hire illegal aliens, undercut federal policy and provide less of an incentive for companies to comply with state labor laws.

"New York has traditionally protected the rights of undocumented workers and this decision is following in that tradition," said Michael Altman, Balbuena's attorney.

In his dissent, Judge Robert Smith said the arrangements Balbuena and Majlinger made with their employers did violate federal law and that they should not profit from that illegal activity.

"The court holds today that New York courts may award damages to compensate a plaintiff for the loss of an opportunity to work illegally," he wrote. "I would hold that such a recovery is barred by the rule of New York law that the courts will not aid in achieving the purpose of an illegal transaction."

Reed Podell, the attorney for Taman Management and Cassino Contracting Corp., said he may ask the U.S. Supreme Court to hear the cases.

"I think the Court of Appeals is not giving enough weight to congressional intention in enacting immigration law," he said.