New York Court Rejects Discovery Of Workers’ Immigration Status In Workers’ Compensation Claim

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

New York court rejects discovery of workers’ immigration status in workers’ compensation claim
Immigrants' Rights Update, Vol. 18, No. 8, December 22, 2004

A New York supreme court held recently that an injured worker’s immigration status is irrelevant to his workers’ compensation claim and thus denied the employer’s request that the worker disclose information relating to his immigration status and authorization to work in the United States.

The plaintiff, Assif Asgar-Ali, was injured while working as a steamfitter in the basement of the New York Hilton Hotel. Asgar-Ali filed for workers’ compensation and claimed lost earnings under New York’s workers’ compensation statute in the amount of $35,000. Hilton claimed that Asgar-Ali’s immigration status was relevant to his claim for lost earnings, and therefore it sought discovery regarding his immigration status and requested documentation regarding his employment authorization. Hilton asked the court to dismiss Asgar-Ali’s claim for lost earnings if he did not comply with its discovery request. In response, Asgar-Ali asserted that he had provided the appropriate documentation to Hilton at the time of his hire, as required by the employment eligibility verification provisions of the Immigration and Nationality Act.

Hilton relied on Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137 (2002), in asserting that Asgar-Ali’s immigration status was relevant his claim for lost earnings. (For a summary of the U.S. Supreme Court’s decision in Hoffman Plastic, see “Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing,” Immigrants’ Rights Update, Apr. 12, 2002, p. 10.) Hilton also cited a decision reached by another New York court (in Majlinger v. Casino Contracting, et al., 2003 N.Y. Misc. LEXIS 1248 (Oct. 1, 2003)), which dismissed a worker’s claim for lost wages on the basis that he could not prove that he was eligible to work in the U.S. (For a summary of the Majlinger decision, see “N.Y. Court, Relying on Hoffman, Denies Worker’s Lost Earnings Award,” IRU, Nov. 24, 2003, p. 9).

Importantly, the court distinguished Asgar-Ali’s case from the Hoffman Plastic decision and squarely rejected the decision reached in Majlinger. The court found that Hoffman does not prevent states such as New York from awarding common law remedies such as lost earnings to undocumented workers. It went on to explicitly criticize the Majlinger decision, quoting a New York Law Journal article that characterized the opinion as “fl[ying] in the face of every other decision rendered subsequent to Hoffman in that it shifts the burden of proof to plaintiff” to prove that the plaintiff was employment- authorized.

The court recognized, however, that other New York courts have found immigration status to be relevant in assessing lost earning claims. It noted that one such seminal case, Klapa v. O & Y Liberty Plaza Co., 168 Misc. 2d 911, 912 (N.Y. Sup. Ct. 1996), established that a worker’s status “in and of itself, cannot be used to rebut a claim for future lost earnings.” Instead, the holding in Klapa that other courts have followed is that “in order to rebut [lost earnings claims] defendants must be prepared to demonstrate something more than just the mere fact that the plaintiff resided in the United States illegally.” The court went on to explain that generally this has been recognized to mean that the defendant must prove that the worker was being deported or that the worker was subject to an imminent deportation hearing.

In Asgar-Ali’s case, the court found that Hilton did not establish that he was subject to an imminent deportation or deportation hearing, nor that his immigration status was relevant for any other reason. It therefore held that Asgar-Ali did not have to disclose any information related to his immigration status. According to the court’s decision, “Hilton’s interest in plaintiff’s alien status can only be construed as an attempt to deny plaintiff access to the courts through intimidation; this is intolerable to this Court.”

Assif Asgar-Ali v. Hilton Hotel Corp., 2004 Slip Op. 51061U (N.Y. Sup. Ct. Aug. 6, 2004).