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

The IRCA, as construed by the Hoffman court, forcefully made combating the employment of illegal aliens central to [t]he policy of immigration law and the Supreme Court determined that the objectives of the IRCA outweighed Congress’s policy choices in the area of labor relations, to the extent of precluding the NLRB’s award of back pay to an employee who had obtained the employment at which he sought fair treatment by criminally subverting the IRCA’s enforcement mechanism. There is no indication in the IRCA, however, that Congress intended to deprive undocumented aliens of their right to sue for personal injury in state courts or to deprive them of the incidents thereof, such as the right to recover damages for lost wages.

To the contrary, a federal statute enacted in 1885, which provided that any contract of employment with an undocumented alien was void, was repealed in 1952 with the passage of the INA. The INA, with certain exceptions, makes undocumented aliens who seek to enter this country for the purpose of performing labor ineligible to receive visas or to be admitted into the United States. This alteration of the federal statute indicates that Congress determined that the exclusion of certain aliens from admission to the United States was a more satisfactory sanction than rendering their contracts void and thus unjustifiably enriching employers of such alien laborers. While the IRCA subsequently added provisions prohibiting the hiring of undocumented aliens, the IRCA and the regulations that accompany it do not purport to intrude into the area of what protections a State may afford these aliens. In the absence of an explicit statement of Congress’s intent to deprive undocumented aliens of remedies to which they would otherwise be entitled in state courts, such a disability may not be inferred. Nor did the Supreme Court give any indication in Hoffman that undocumented aliens should be deprived of lost wages in state-court personal injury actions.

In prior decisions, this Court has held that a plaintiff’s immigration status is relevant to a determination of damages for lost wages and presents an issue of fact to be resolved by the jury. Contrary to the defendants’ contention, those cases should not be read as holding that an undocumented alien, merely by virtue of his or her lack of authorization to work in this country, may be precluded from recovering damages for lost wages. Rather, the jury may take the plaintiff’s status into account, along with the myriad other accident factors relevant to a calculation of lost earnings, in determining, as a practical matter, whether the plaintiff would have continued working in the United States throughout the relevant period, or whether his or her status would have resulted in, e.g., deportation or voluntary departure from the United States. Illegal conduct by the plaintiff will automatically foreclose an award of damages for lost wages only when the work itself is of an unlawful nature.

In this case, the record contains no evidence indicating whether or not J & C was aware that the plaintiff was an undocumented alien, whether or not J & C complied with the document examination requirements of the IRCA, or whether or not the plaintiff violated the IRCA by submitting false documents at the time he was hired. Accordingly, this case could easily be distinguished from Hoffman on the ground that the Hoffman decision rested heavily on the fact that the employee in that case had obtained the job from which he was fired by submitting a fraudulent birth certificate indicating that he was an American citizen, thereby subverting the IRCA’s enforcement mechanism. We have concluded, however, that the Hoffman decision simply does not apply to awards of damages in personal injury actions. Therefore, we do not limit our holding to cases in which the plaintiff can prove that he or she has not submitted a fraudulent document in violation of the IRCA or that the employer was aware of his or her immigration status. An undocumented alien’s submission of a false document to satisfy the IRCA’s verification requirements is punishable by a fine and imprisonment for up to five years, and in our view, withholding damages for lost wages does not provide a meaningful degree of additional deterrence. Indeed, in the analogous context of child labor, a New York statute authorizes double recovery of workers compensation benefits by underage workers, despite their complicity in an illegal employment relationship and even their fraudulent misrepresentations to their employers concerning their age.

As we have noted, withholding lost wages from undocumented aliens would create a perverse incentive for employers to hire such aliens. Were employers, general contractors, and property owners allowed to escape liability for lost wages where they are purportedly unaware of an employee’s undocumented status, an incentive would still exist for employers to remain willfully ignorant of prospective employees’ immigration status and to hire undocumented aliens with a wink and a nod. Only by equalizing defendants’ potential liability for accident to authorized and unauthorized workers can the objectives underlying both federal immigration law and this state’s tort law and workplace safety statutes be realized.

The defendants’ and the third-party defendant’s remaining contentions are without merit. Accordingly, we reverse the order, with one bill of costs to the appellant payable by the respondents appearing separately and filing separate briefs, deny the motions, and reinstate the claim for lost wages.

Ordered that the order is reversed, on the law, with one bill of costs payable to the appellant by the respondents appearing separately and filing separate briefs, the motions are denied, and the claim for lost wages is reinstated.

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