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A trial court in Nassau County, NY, recently ruled on whether the
immigration status of an undocumented worker should impact his recovery
of future loss of wages under state wage and labor laws. In an
unpublished decision, the court held that it is appropriate to consider
the worker’s immigration status in calculating future lost earnings.
The case, Echeverria v. Estate of Lindner, et al.,
involved an undocumented day laborer from El Salvador, Juan Vincente
Echeverria, who was injured in an elevation-related construction
accident in Sept. 2000. As a result of the accident, Echeverria
suffered serious head and back injuries. He sued four entities related
to his place of employment for past medical expenses, past and future
lost earnings, and past and future pain and suffering. One defendant
defaulted, and the three other defendants settled just prior to the
start of the trial.
The court was then left to decide two issues on
“inquest,” which is a judicial process (not a trial) by which an issue
of fact is decided solely by a judge who considers testimony offered by
the plaintiff. Two issues the court examined on inquest were whether
Echeverria’s immigration status should factor into the calculation for
his future lost earnings award and, if it should, how it should.
The court first addressed the issue of whether
future lost wages should be awarded to undocumented workers like
Echeverria. Citing a recent New York decision, Asgar-Ali v. Hilton
Hotel Corp. (see “New York
Court Rejects Discovery of Workers’ Immigration Status in Workers’
Compensation Claim,”
Immigrants’ Rights Update, Dec. 22, 2004, p. 5), the court found
that the plaintiff’s immigration status is not a proper issue for a
fact-finder when determining liability.
The next question the court addressed was whether
immigration status is relevant when calculating future lost earnings.
The court acknowledged the U.S. Supreme Court’s decision in Hoffman
Plastic Compounds, Inc v. NLRB, 535 U.S. 137 (2002), which held that
individuals who lacked authorization to work in the U.S. could not be
awarded back pay under the National Labor Relations Act. (For a summary
of the decision in Hoffman, see “Supreme
Court Bars Undocumented Worker from Receiving Back Pay Remedy for
Unlawful Firing", IRU, Apr. 12, 2002, p. 10.) The Echeverria
court found, however, that the Hoffman decision neither impacts
the laws enforced by the N.Y. Department of Labor, nor does it prevent
undocumented workers from recovering compensatory damages under New York
labor law.
The court did hold, however, that it is appropriate
to consider Echeverria’s immigration status in calculating his future
lost wages award. In rendering this decision, the court questioned the
testimony provided by Prof. David Kennett, an economist at Vassar
College, concerning the economic contributions and wage earnings of
undocumented workers in the U.S. Kennett explained that “undocumented
workers are not a small and transitory part of the workforce but are an
important component and one that must be here to stay if U.S. industrial
and agricultural output is to be sustained.” He also noted that
undocumented workers are at present paid considerably less than workers
with lawful immigration status. Based on these and other factors,
Kennett calculated that Echeverria had suffered $1,645,278 in future
losses.
The court took issue with Kennett’s future lost
wages calculation, criticizing it for failing to take into account the
fact that Echeverria could in the future either be deported or decide
voluntarily to return to his home country. The court also criticized
Kennet’s calculations model because it did not reflect the possibility
that undocumented workers may not have “the same desire or incentive to
continue to work in this country as the normal ‘model’ the professor
used for future earnings. . . .”
In revising Kennett’s calculations of Echeverria’s
future lost earnings, the court cited statistics on the number of
“unauthorized immigrants” residing the U.S. (7 million), and the
percentage within this population that “left this status” (7%) as a
result of dying, returning to their home country voluntarily, being
deported, or adjusting their status to lawful permanent residence. It
also took into account Echeverria’s testimony that his father has been
in the U.S. unlawfully for four years and his brother for ten years.
After taking these factors—and thereby Echeverria’s
immigration status—into account, the court awarded him $750,000 to
compensate for his future loss of earnings. The court noted that it
made this award “with great reluctance.” It expressed discomfort with
granting future loss of earnings to individuals who could not be
employed or be paid in the U.S. lawfully. The court, however, found
that there are actors more blameworthy than undocumented workers such as
Echeverria—namely, entities such as employers who knowingly hire
undocumented workers and fail to insure them pursuant to state workers’
compensation law, immigration authorities who fail to adequately enforce
immigration law against undocumented immigrants, and the U.S. Congress,
which has not adequately addressed the need to repair the U.S.’s broken
immigration system.
Echeverria v. Estate of Lindner,
et al., 2005 N.Y. Slip Op. 50675U,
2005 N.Y. Misc. LEXIS 894 (Mar. 2, 2005).
By
Anita Sinha, NILC staff
attorney
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