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The plaintiff, SM, allegedly was injured in January 2001…cont

The Immigration and Nationality Act, inter alia, criminalizes unsanctioned entry into the United States by an alien and provides that any alien who was inadmissible upon entering the United States is deportable. Prior to 1986, the INA evinced at best a peripheral concern with employment of illegal entrants. The INA did not make it unlawful for an employer to hire an alien who is present or working in the United States without appropriate authorization, and did not make it a separate criminal offense for an alien to accept employment after entering this country illegally.

In 1986 Congress enacted the IRCA, which makes it unlawful to employ any alien who is not authorized to work in the United States. A House Judiciary Committee report accompanying the IRCA explained that employment is the magnet that attracts aliens here illegally, and that the statute’s primary purpose was to prevent the employment of undocumented aliens by placing the onus on employers to verify their prospective employees’ eligibility to work in the United States.

In two cases decided after the enactment of the IRCA, this Court and the Appellate Division, First Department, rejected arguments that the plaintiffs in wrongful death injury actions should be precluded from recovering the lost wages of alien decedents unlawfully employed in the United States. In Collins, we held that the record fails to establish as a matter of law that any wages which the decedent might have earned would have been the product of illegal activity. Rather, this question, as well as the length of time during which the decedent might have continued earning wages in the United States, and the likelihood of his potential deportation, are factual issues for resolution by the jury under all of the circumstances of the case as developed by a full trial. The Court in Public Adm’r of Bronx County permitted the recovery of lost wages since the record in that case did not support a conclusion, as a matter of law, that decedent’s allegedly illegal conduct amounted to serious crimes that directly caused his injury.

In 2002 the United States Supreme Court decided Hoffman Plastic Compounds, Inc. v NLRB. In that case, the employee, a native of Mexico who had never been legally admitted to, or authorized to work in, the United States, was hired by the employer after fraudulently presenting the birth certificate of an American-born friend. The employer laid off the employee, and the National Labor Relations Board (hereinafter the NLRB) later determined that the employer had terminated the employee and three other workers in order to rid itself of known union supporters in violation of the National Labor Relations Act (hereinafter the NLRA). To remedy that violation, the NLRB ordered the employer, inter alia, to offer reinstatement and back pay to the employee.

The Supreme Court held that the NLRB lacked the discretion to award back pay to the employee for a period during which he was an alien unauthorized to work in the United States. The Court noted that in a decision predating the IRCA, it had held that the NLRA applied to undocumented aliens and that such an application of the statute did not conflict with then-existing federal immigration laws. Indeed, the Court noted in Sure-Tan that the purposes of the immigration laws would be well served by extending the protection of the NLRA to undocumented aliens, because if an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened. The Sure-Tan court held, however, that in devising a remedy for the NLRA accident violations suffered by the employees in that case, who had returned to Mexico after being discharged, the NLRB was obliged to take into account the equally important Congressional objective of deterring unauthorized immigration. Thus, the Court concluded that reinstatement “must be conditioned upon the employees’ legal readmittance to the United States, and the accrual of back pay must be tolled during any period when they were not lawfully entitled to be present and employed in the United States.

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