Thread: Illegal Workers' Right to Lost Wages Clarified

Illegal Workers' Right to Lost Wages Clairified

Mark Fass
New York Law Journal
November 24, 2008

For the second time in less than a month, a state appeals panel has narrowed the application in New York of a 2002 U.S. Supreme Court decision that barred undocumented workers from collecting unpaid wages.

In the present case, a unanimous Appellate Division, Second Department, panel ruled that a worker's submission of false documents does not preclude recovery of lost wages if the employer also violated federal immigration laws.

The decision extends the principles underlying Balbuena v. IDR Realty, 6 NY3d 338, the 2006 decision in which New York Court of Appeals ruled that the 2002 U.S. Supreme Court ruling - Hoffman Plastic Compounds v. National Labor Relations Bd., 535 US 137 - does not preempt any worker protections set forth under New York state law.

"We conclude that where an employer violates the [Immigration Reform and Control Act of 1986] in hiring an employee, such as by failing to properly verify the employee's eligibility for work, the employee is not precluded, by virtue of his submission of a fraudulent document to the employer, from recovering damages for lost wages as a result of a workplace accident," Presiding Justice A. Gail Prudenti (See Profile) wrote for the Second Department panel in Coque v. Wildflower Estates Developers, 18365/01.

The decision will be published Friday.

"We do not believe that the Balbuena decision should be read so broadly as to stand for the proposition that a worker forfeits his or her right to recover lost earnings merely by virtue of submitting a false document at the time he or she is hired. Rather, the false document must actually induce the employer to offer employment to the plaintiff."

Justices David S. Ritter (See Profile), Anita R. Florio (See Profile) and William E. McCarthy (See Profile) joined the opinion.

Coque comes on the heels of a Third Department decision last month that found an injured illegal immigrant who worked under an assumed name was entitled to receive lost wages under the state Workers' Compensation Law. (NYLJ, Oct. 31)

The plaintiff in the present case, Luis Coque, immigrated from Ecuador in 2000. He was hired by City Wide Building Corp. after submitting a false Social Security card. City Wide also violated the Immigration Reform and Control Act (IRCA) by failing to verify additional documentation.

Mr. Coque was injured the following year, on July 10, 2001, while working as a carpenter in a townhouse development. While he stood on a makeshift scaffolding, an 80-pound bundle of shingles fell through an opening in a roof, striking him in the back and shattering his scaffold. He fell approximately 25 feet, sustaining injuries that left him paraplegic.

Mr. Coque sued City Wide Building as well as the project's developer, Wildflower Estates Developers, and a second construction company, Classic Construction, which had been hired to do the roofing.

In December 2006, a Queens jury awarded Mr. Coque $3.3 million in damages, including $102,000 for past and future lost wages.

Mr. Coque appealed, challenging the adequacy of the verdict. The defendants cross appealed, arguing among other things that Hoffman Plastic Compounds precludes an undocumented worker from collecting damages for lost wages.

In a decision last week, the Second Department found in favor of Mr. Coque, ordering a new trial unless the defendants agreed to pay a total of $6.9 million, including the $102,000 for lost wages awarded by the jury.

The panel reiterated the Court of Appeals' finding in Balbuena that "nothing in IRCA or in the Hoffman decision purports to limit a State court's power to award damages to an undocumented worker who is injured in the workplace."

The panel then addressed a question that the Court of Appeals did not have occasion to answer: Does federal immigration policy bar an award of lost wages for an alien who provides an employer with false work documentation?

The Second Department ruled that in the present circumstances, where both the employee and the employer violated IRCA, Balbuena does not prevent recovery.

"Clearly, an employer should not be rewarded for its failure to comply with federal immigration law by being relieved of liability for its failure to provide a safe workplace," Justice Prudenti wrote. "Moreover, where an employer is complicit in an illegal hire, foreclosing the employee from recovering damages for lost wages does not discourage violations of federal immigration law, but has exactly the opposite effect, from the employer's perspective."

Brian J. Isaac of Pollack, Pollack, Isaac & De Cicco represented Mr. Coque on appeal.

Steven J. Ahmuty Jr., and Timothy R. Capowski of Shaub Ahmuty Citrin & Spratt in Lake Success represented Wildflower Estates Developers.

Lorin A. Donnelly of Milber Makris Plousaidis & Seiden in Woodbury represented Classic Construction.

Richard N. Petrocelli of Petrocelli & Christy represented City Wide.

http://www.law.com/jsp/article.jsp?id=1202426251885

This is why it is not a good thing to have illegal aliens working. This is modern day slavery. It is horrible, but since this man is illegally here working, and not a citizen, this is what will happen. Especially when money gets tight. And this man has no legal recourse when the laws are really applied, and he is outta luck.

I feel bad for the man being severely injured. Although I know as a non-citizen, and illegal alien, he is just as much at fault, for the company owner can cut all kinds of corners on safety, creating a dangerous workplace, and the business owner can use the threat of I.C.E. if these people speak up.

And now that the economy is in the toilet, and circling the bowl, these occurances are going to become more commonplace, and it doesn't matter if they protest or not. The courts and judges know what's going on, so there is going to be more of a hardline stance by business owners, and the legal system in an effort to preserve the economy. So this may be another issue that in it's implimentation, will cause more self deportation as these illegal workers finally see just how important they are to the machine. They aren't. They are just more meat for the grinder. So now they are not just hurting the American workforce, they are hurting themselves now.