http://www.nysun.com/article/43531

Ruling: Illegals May Sue for Wages at U.S. Levels

By JOSEPH GOLDSTEIN
Staff Reporter of the Sun
November 15, 2006

Illegal immigrants injured on construction jobs can sue for the future income they would have earned in this country at American wage levels, a federal appeals court ruled yesterday.

The ruling does not apply to illegal immigrants who use false documents or otherwise lie about their immigration status to get jobs. But the decision, by the 2nd U.S. Circuit Court of Appeals, says illegal immigrants are covered under New York's "scaffold law." The law allows injured workers to sue contractors over unsafe work environments.

The decision upholds a $638,671.63 jury award to an illegal immigrant from Brazil. Of that amount,$230,000 was for future lost earnings. The immigrant, Jose Raimundo Madeira, was earning $15 an hour and working long weeks as a construction worker in 2001 when he fell from a building at a job site in Monroe, N.Y. In granting the award, the jury considered Mr. Madeira's earning potential in this country and the likelihood he would stay, according to the decision.

The pressing legal issue before the court was whether a federal law, the Immigration Reform & Control Act of 1986, preempted illegal immigrants from being compensated for lost earnings at American pay rates. Citing that law, the U.S. Supreme Court ruled in 2002 that an illegal immigrant from Mexico who was fired for organizing a union was not entitled to the back pay that the National Labor Relations Board had ordered.

The three-judge panel of the 2nd Circuit found that the facts in the Supreme Court case were different enough for them to uphold Mr. Madeira's future pay loss award.

For starters, Mr. Madeira did not lie about his immigration status to his employer as the Mexican in the case before the Supreme Court had, according to the decision. Also, Mr. Madeira's injury was the fault of his employer, the decision, written by Reena Raggi and signed by Wilfred Feinberg, said.

Still, the judges were cautious to emphasize that they did not believe their ruling interfered with federal immigration policy.

The judges wrote that they were not required in this appeal to decide whether court decisions such as this encourage illegal immigration.

Instead "a viable policy argument might still be made" that extending workers' compensation awards to injured illegal immigrants "better serves to encourage employer compliance with both federal immigration and state safety laws," according to the decision.

The decision makes a point of the fact that the jury that heard Mr. Madeira's case was instructed to take into account the possibility of deportation when deciding how much Mr. Madeira's future earnings were worth.

Had no such jury instruction been given, the jury award might have run counter to federal policy, the decision suggests.

In a concurring opinion, Judge John Walker, stresses that cases such as this come too close to forcing judges to spell out what Congress left unsaid in sweeping laws, such as the Immigration Reform & Control Act.

"Judges are especially ill-suited to divining the unexpressed will of Congress when it comes to hot-button and ever-shifting issues like immigration policy," Judge Walker wrote.

"This is a close case," he wrote.

The case has been pending before the court for an unusually long time. The 2nd Circuit heard oral arguments 18 months ago. In the interim, the state's highest court, the Court of Appeals, decided a similar case, ruling that that "scaffold law" was meant to protect workers without considering their immigration status.