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Company-A was the owner of a certain property in Queens County,

Company-A was the owner of a certain property in Queens County, which it bought to develop into a 12-story commercial building, with retail spaces, office condominiums, entertainment complexes and parking. The general contractor, Company-B, retained Company-C to demolish an existing building on the property. Having no demolition experience, Company-C subcontracted the demolition job to Company-D. Both plaintiff-one and plaintiff-two worked for Company D.

On 4 February 2005, a construction accident occurred. A portion of the third floor gave way when both plaintiffs were demolishing it. Plaintiff-one suffered from a spinal injury, specifically, multiple fractures to his vertebrae, requiring spinal fusion, and resulting in paraplegia, and plaintiff-two sustained bilateral wrist fractures, necessitating surgery to his right hand.

Consequently, plaintiffs filed a personal injury action against Company-A, Company-B, Company-C and Company-D for the injuries they sustained, which included a spinal injury.

Apparently, Company-D, as is true with many companies in the construction industry, was not concerned with plaintiffs’ alien status, complying with the federal Immigration Reform and Control Act of 1986, or IRS regulations. According to both plaintiffs, in their deposition testimony, they did not have to fill out an application to work for Prestige, or show any type of identification, and they were not asked for a Social Security number, were always paid in cash, and were never given W-2 forms.

Moreover, not only did Company-D not comply with hiring regulations. They were also not very concerned with the safety of its employees. According to the owner of Company-C, Company-D did not have a safety director at the site since they fired their safety director sometime before the subject construction accident. Plaintiffs were initially not provided with hard hats when they began their employment, nor were they provided with harnesses on the date of the subject construction accident even though plaintiff-one was using a jackhammer on what was left of the concrete floor while plaintiff-two used wire cutters. The remaining portion of the floor was approximately eight feet by four feet and was in between beams that supported the floor. The concrete slab was standing as an island, supported by beams on four sides. When plaintiffs reached the slab by walking 10 feet on exposed beams, three sides of the slab had already been cut and separated from the supporting beams. Thus, when the slab suddenly tipped, plaintiffs fell to the floor below without any protection whatsoever.

Now that plaintiffs were injured and sought lost wages, the owner and general contractor were suddenly concerned with plaintiffs’ alien status and income tax returns.

Here, although a worker’s alien status may be a legitimate factor in litigating a lost wage claim, allowing defendants to inquire of plaintiffs’ status would contravene the legislative policies behind the IRCA. It would also unnecessarily intimidate plaintiffs from pursuing a legitimate claim. Thus, defendants’ motion was denied.

It is true that employers often hire undocumented workers to keep cost down. This practice is inconsistent with the immigration policies, thus Congress enacted the IRCA with the expressly stated aim of curbing it. As the Court of Appeals noted in the case of Balbuena v IDR Realty LLC, both Congress and the President expressed the view that the principal means of closing the back door, or curtailing future illegal immigration, was through employer sanctions that were intended to remove the incentive for illegal immigration by eliminating the job opportunities which draw illegal aliens into the country. To attain this goal, the most important component of the IRCA scheme was the creation of a new employment verification system designed to deter the employment of aliens who are not lawfully present in the United States and those who are lawfully present, but not authorized to work. Under this system, aliens legally present and approved to work in the United States are issued formal documentation of their eligibility status by federal immigration authorities, usually in the form of a green card, a registration number or some other document issued by the Bureau of Citizenship and Immigration Services. Before hiring an alien, an employer is required to verify the prospective worker’s identity and work eligibility by examining the government-issued documentation. If the required documentation is not presented, the alien cannot be hired. An employer who knowingly violates the employment verification requirements, or who unknowingly hires an illegal alien but subsequently learns that an alien is not authorized to work and does not immediately terminate the employment relationship, is subject to civil or criminal prosecution and penalties. In addition to the provisions relating to the responsibilities of employers, IRCA also declares that it is a crime for an alien to provide a potential employer with documents falsely acknowledging receipt of governmental approval of the alien’s eligibility for employment. Similar to the [Immigration and Naturalization Act], however, IRCA does not penalize an alien for attaining employment without having proper work authorization, unless the alien engages in fraud, such as presenting false documentation to secure the employment. In order to preserve the national uniformity of this verification system and the sanctions imposed for violations, Congress expressly provided that IRCA would preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

In other words, as provided for under IRCA, the onus is on the employer to make sure that it is hiring a person authorized to work and its failure to do so will expose it to civil or criminal prosecution and penalties. Only in situations where the worker uses false documents to obtain employment will he be subject to criminal penalties. Notwithstanding an employer’s exposure to certain risks under IRCA, in certain industries, such as in the demolition segment of the construction industry, that risk is insufficiently high to deter the hiring of undocumented immigrants. Thus, certain segments of the construction industry are replete with undocumented aliens.

In the instant case, given the status of the industry, it seems disingenuous for contractors and owners to seek disclosure of the status of an employee after the employee has been injured under the guise of attempting to mitigate a lost wage claim, a concern which apparently never entered their minds when the work was bid out. Company-A could have instructed its general contractor not to subcontract with outfits who did not comply with federal regulations, and Company-B could have insisted that all its subcontractors comply with federal regulations as well.

Pursuant to the case of Balbuena v IDR Realty LLC, Company-A and Company-B moved for an order compelling further depositions of plaintiffs with regard to immigration status and income tax returns.

In the case of Balbuena, the Court of Appeals addressed whether an undocumented alien injured at a work site as a result of state Labor Law violations is precluded from recovering lost wages due to immigration status. A split in authority had developed between the Appellate Division, First and Second Departments, on this issue given the Departments’ interpretation of the case of Hoffman Plastic Compounds, Inc. v NLRB which was decided sometime in 2002. There, the court held that an undocumented alien who provided fraudulent work papers in violation of federal law could not be awarded back pay for work not performed as a result of an employer’s unfair labor practice. After an exhaustive analysis of federal law, New York State Labor Law, and preemption principles, the Court of Appeals held in the case of Balbuena that IRCA does not bar maintenance of a claim for lost wages by an undocumented alien in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment. In addressing mitigation concerns, the Court first noted that, where a plaintiff has suffered serious injuries which prevent him from working, there is no need for plaintiff to mitigate and, therefore, his immigration status is irrelevant. It went on to state that in any event, any conflict with IRCA’s purposes that may arise from permitting an alien’s lost wage claim to proceed to trial can be alleviated by permitting a jury to consider immigration status as one factor in its determination of the damages, if any, warranted under the Labor Law. An undocumented alien plaintiff could, for example, introduce proof that he had subsequently received or was in the process of obtaining the authorization documents required by IRCA and, consequently, would likely be authorized to obtain future employment in the United States. Conversely, a defendant in a Labor Law action could, for example, allege that a future wage award is not appropriate because work authorization has not been sought or approval was sought but denied. In other words, a jury’s analysis of a future wage claim proffered by an undocumented alien is similar to a claim asserted by any other injured person in that the determination must be based on all of the relevant facts and circumstances presented in the case.

In the case at bar, there was no indication that plaintiffs used false documents to obtain employment with Company-D. It must be noted that Company-D required no documentation whatsoever when they were hired. Company-D’s qualification was simply a willingness to do dangerous work. Thus, in accordance with the court’s ruling in the case of Balbuena, plaintiffs may pursue a lost wage claim.

With respect to plaintiff-one, since his injury, specifically, spinal injury, prevents him from working in the future, he no longer needs to establish that he obtained or was in the process of obtaining work authorization. Plaintiff-one’s alien status is irrelevant and defendants may not question him on that matter.

With respect to plaintiff-two, although Company-A and Company-B could theoretically argue that a future wage award based on United States wages is inappropriate assuming he has not sought work authorization or approval was sought but denied, the court will not allow defendants to question plaintiff-two on his status for several reasons. First, it appears that Company-D intentionally violated IRCA by not ascertaining its employees’ authorization to work in the United States to enlist a cheaper workforce. Second, and even more importantly, mitigation encompasses an employer proving that the injured employee cannot obtain employment in New York or the USA, but only in his country of origin. However, the fallacy of this mitigation argument is that the construction industry, especially that sector that does demolition, would reemploy plaintiff-two without hesitation because of the very fact that he is undocumented and the employer may feel that it can pay less and not accord him the protection of the labor laws. To permit company-A and Company-B to ascertain plaintiff-two’s work authorization after a lost earnings claim is interposed is tantamount to encouraging employers such as Company-D, as well as defendants for turning a blind eye at Company-D’s hiring practices, to thwart IRCA’s legislative policy with impunity. Indeed, what is really happening under the guise of litigating lost wages is that undocumented workers are being intimidated with the prospect of being deported and having their families and lives torn apart after providing their services for dangerous work. Thus, Company-D, as well as those sectors of the construction industry that rely on undocumented workers, could undermine immigration policy on the one hand, while undocumented workers are being threatened with the possibility of deportation if they get hurt on the job. In brief, it is a win-win situation for the construction industry while the undocumented worker bears all the risk. The court will not and cannot condone this behavior whether intimidation is the intended result or simply an unfortunate byproduct of litigating a legitimate concern.

Thus, the motion was denied in its entirety.

For a consultation on matters similar to the above, Queens County Personal Injury Lawyers at Stephen Bilkis & Associates are at your service. It’s free of charge. Contact us now for advice. It will be an honor to assist you in protecting your rights and resolving your legal battles. Our Queens County Spinal Injury Attorneys, among others, will be more than glad to assist you in any of your queries.

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