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Can Undocumented Workers Recover Damages Under New York Labor Law?

Posted on April 29, 2015 by Kelly Wolford
construction accident lawyers

New York’s Labor Laws are aimed at encouraging construction owners, contractors and their agents to provide a safe site for workers.

When those parties fail to live up to their duties, the Labor Laws allow injured workers or the families of deceased workers to seek compensation for medical expenses, lost wages, pain and suffering and other damages.

However, many ask, do the protections of New York’s Labor Laws extend to undocumented workers who are injured in construction accidents?

The short answer: Yes – unless the worker used fraud to obtain his or her job. You can read the longer answer below to get a better understanding.

Debate on Allowing Lost Wage Damages to Undocumented Workers

As one of our firm’s founding partners, Daniel R. Santola, writes in his book, Litigating Construction Accident Cases in New York, “strong and passionate public policy arguments” can be found on both sides of the debate on whether undocumented workers should be permitted to recover damages – specifically lost wages – under New York law.

Proponents may point to the growing number of construction contractors in New York that rely upon undocumented workers to perform some of the most dangerous jobs – and at wages below those of other workers.

If those contractors can avoid liability for serious or fatal accidents suffered by those workers, it goes against a key purpose of New York’s Labor Laws – promoting a safe workplace – and encourages hiring undocumented workers.

On the other hand, opponents may point to the Immigration Reform and Control Act of 1986 (IRCA). The law makes it illegal to hire an undocumented worker. So, any employment agreement between a contractor and the worker would be illegal. It would go against public policy to enforce such an illegal agreement.

U.S. Supreme Court Denies Back Pay to Undocumented Worker

The U.S. Supreme Court issued a key decision in this area of the law in 2002. In the case, Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, the justices held that the NLRB could not award back pay to an undocumented worker.

As the Supreme Court reasoned, the IRCA requires employers to examine documents and verify that a worker is not an unauthorized alien. The employer faces civil and criminal penalties for failing to do so. The IRCA also makes it illegal for a worker to give an employer false or fraudulent documents to secure a job.

So, if an undocumented worker is hired, at least one party – the employer or worker – has violated the IRCA, the high court found. Allowing an undocumented to recover back pay, in this sense, would violate the policy behind the IRCA.

N.Y. Court of Appeals Allows Undocumented Worker to Recover Lost Wages

Five years after Hoffman, the issue came before the New York Court of Appeals in two cases: Balbuena v. IDR Realty LLC and Majlinger v. Cassino Contr. Corp.

The question: Whether a federal law, IRCA, could preempt New York’s Labor Laws. The Court of Appeals’ answer: No, depending on the circumstances.

The Court of Appeals focused on the fact that the worker in Hoffman had obtained his job by giving false documentation to his employer. In contrast, there was no proof that the workers obtained their jobs through fraud in Balbuena and Majlinger.

The IRCA does not make it illegal to work without documentation, the Court of Appeals noted. It prohibits only knowingly hiring an undocumented worker or using fraud to induce the hiring of an undocumented worker.

So, if there is no evidence that a worker violated the IRCA, then the presumption is that the employer must have broken the law. Also, in the absence of proof that a worker used fake or false documents to obtain a job, the worker should be permitted to recover lost wages under New York’s Labor Laws, the Court of Appeals held.

According to the Court, ruling otherwise would condone an employer’s violation of the IRCA and allow “unsafe work site practices.”

The bottom line: If you have been hurt on a construction site in Albany, Syracuse or elsewhere in New York State, or if you have lost a loved one to a construction accident, don’t assume anything about your legal rights. Instead, contact a construct accident lawyer at Powers & Santola, LLP, and allow your case to be reviewed by an experienced attorney.