Undocumented Workers and their rights

The law in New York has become clear, an undocumented alien can sue when injured, can recover lost wages and can prove their right to future lost earnings even if they provided their employer with false documentation. Recent case law has addressed this topic and it was decided that if the employer failed to verify that the worker was a documented worker by seeking proper proof, the worker's acts of giving improper information does not prevent them from making their claim.

This is extremely important to most such workers because, it is the experience of this New York personal injury lawyer that very few employers who hire undocumented workers ask for documents and if they do, they do so knowing exactly who they are hiring.

Although many people in this country continue to voice concern over the existence of undocumented workers in the United States and in New York there can be no question that without those very workers many jobs simply would not get done or get done at a cost that most Americans are unwilling to pay. In these tough economic times peoples views about such topics change as their views of what they would be willing to do to earn a living changes.

This is not about that very hotly debated topic but rather is about the fact the the New York State Courts have recently clarified the right of these workers not only to come to court if they are injured but to present their claim as any other injured person would.

The law all across the United States is clear. An injured person has the right to bring their claim to court and be compensated as any other citizen could. After all, we all bleed red blood and we all suffer pain the same way.

The question for workers who were injured was, if they could not go back to work because their injuries were so disabling, how would a jury calculate the value of the worker's claim for future loss of earnings. This is no trivial matter as a lifetime of lost earnings can be very substantial.

The law was clear and has always been that such a worker can make such a claim for future earnings. But do we calculate the future loss at the rates of pay they were earning here in the United States or at the rate they could earn back in their own country.

Several years ago I presented such a case to the Court and in a decision called Klapa v. O & Y Liberty Plaza Company, Justice Lorraine Miller made clear that a jury should not be prejudiced by knowledge of the fact that the plaintiff was an undocumented alien unless there was additional proof that such person was about to or would become deported. Thus the fact that they were likely to have remained in the United States and continue to earn income at United States was enough to overcome the defendant's desire to show a jury that they are not documented because such information could be highly prejudicial.

The court here recognized that the information that a worker is not documented would not only be used by the jury to calculate future earnings rates but would likely prejudice them across the board against the injured undocumented worker and it was that which the Court sought to avoid.

In 2006 The New York Court of Appeals decided the case of Balbuena v. IDR Realty, LLC, where the rights of undocumented workers to bring suit and recover future lost earnings was decided in favor of the worker, as long as the worker had not fooled their employer into hiring them by providing false documentation.

While this decision made great strides, it left open the most common situation where a worker provides improper information or documents to the employer but the employer is not fooled into hiring them by the documentation or information given by the worker because the employer knew of or suspected the workers status was unclear.

Recently the Appellate Division, Second Department addressed this situation in the case of Coque v. Wildflower Estates Developers Inc. The court there found that since the employer did not follow the rules regarding verification of employment status by obtaining proper documentation they could not claim they were fooled or duped into hiring the worker
In other words the Court recognized what all the best New York Personal injury Lawyers know; that employers know who they are hiring and they know they are hiring undocumented workers. That's what they want, because they are cheap labor and they don't make complaints about conditions or safety.

I for one am very proud to be a member of the bar of New York particularly when the justices of this great New York State follow the great American tradition of fairness for all, even when economic times are tough.