CAN INJURED, UNDOCUMENTED CONSTRUCTION WORKERS RECOVER LOST WAGES?

The New York Law Journal

On February 22, 2010, the New York Law Journal featured an article by two of Block O'Toole & Murphy's construction accident attorneys: Stephen J. Murphy and David L. Scher. The central question of the piece is whether undocumented construction workers have the right to recover lost earnings resulting from injuries on the job. As they put it, "If a worker has obtained employment without documentation, a violation of the law, should he be able to recover lost wages after he is hurt on the job?"

Both experienced construction accident attorneys, Murphy and Scher begin by discussing a 2006 decision by the New York Court of Appeals, Balbuena v. IDR Realty LLC, a landmark which held that undocumented construction workers may be entitled to recover lost earnings as a result of workplace injuries. After reviewing the differences between the Balbuena decision and a U.S. Supreme Court Decision, Hoffman Plastic Compounds Inc. v. NRLB, Murphy and Scher proceed to a decision by the Appellate Division, Second Department (Coque v. Wildflower Estates Developers Inc.), which concluded: "Where an employer violated the IRCA 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 documentation to the employer, from recovering damages for lost wages as a result of a workplace accident." A similar decision was made the by the First Department in Macedo v. J.D. Posillico Inc., holding that the worker's lost earning was not forfeited by submitting a fraudulent social security card because the employer failed to comply with its employment verification obligations in good faith.

Murphy and Scher note that "the principles established in Balbuena have even been applied to prevent certain defendants from inquiring about an injured construction worker's immigration status." This was the case in a 2007 New York Supreme Court case, Gomez v. F&T Int'l (Flushing, NY), in which the employer failed to verify the immigration status of two demolition workers, a violation of the IRCA. The court, punishing the company for its apparent practice of intentionally hiring undocumented workers, denied a motion to compel further deposition regarding the immigration status of the injured workers.

While it may first appear that the Balbuena decision struck a blow against the IRCA by "rewarding" undocumented workers, the Court was persuaded that "limiting the lost wage claims would increase employment levels of undocumented aliens." This, in turn, would make it "more financially attractive" to hire undocumented workers, thereby thwarting the purpose of the IRCA.

In conclusion, Murphy and Scher note that federal legislative changes, such as making it a crime to work without documentation, would have a dramatic impact on the law, compromising a major underpinning of Balbuena. The final irony, they note, is that "stricter federal immigration laws could encourage further hiring of undocumented aliens, leading to less safe work environments and more injuries, because subsequent injury claims would become far less valuable, absent lost earnings components."

Download the full New York Law Journal Article here