Employers beware: If you hire an illegal immigrant and he or she is hurt at work, you may have to pay future lost wages based on the going rate in New York. That’s true even if the undocumented alien couldn’t legally earn those wages in the United States.
Juries can consider that an injured alien might be deported or unable to work legally in the country. But they’re free to believe the alien could find more illegal work and can base their award on that assumption.
Recent case: Jose Madeira, an undocumented worker from Brazil, worked in construction. Madeira never produced false work papers; he didn’t need to since his brother handled the hiring for the company.
The trouble began when Madeira fell from scaffolding and was seriously hurt. He sued the contractor and subcontractor under New York’s Scaffold Law, which allows workers who are hurt because of faulty safety equipment to sue their employers.
The jury was instructed to ignore Madeira’s undocumented status when deciding whether the contractors violated the Scaffold Law but to consider his status when calculating damages, including lost future wages. The jury awarded Madeira $638,000 in total damages, including $230,000 in lost future wages.
The 2nd Circuit Court of Appeals upheld the award. It concluded that federal immigration law didn’t preempt New York law, which allows illegal immigrants to collect lost wages based on the going wage rate. (Affordable Housing, et al., v. Silva dba C&L Construction, No. 04-3700, 2nd Cir., 2006)
Online resources: For advice on immigration verification, go to www.uscis.gov (click on “For Employers). For tips on complying with the Scaffold Law, visit the state’s Department of Labor Web site at www.labor.state.ny.us (type “Scaffold Law” in the keyword search).