Gotham Gazette

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Injured, Undocumented -- And Legally Protected

Gorgonio Balbuena, who was born in Mexico, said he was injured when he fell from a ramp while pushing a wheelbarrow on a construction site in the city. Satnislaw Majlinger, who was born in Poland, said he too was injured when he fell while working on a different construction site in the city.

Both said their injuries are severe. Both sued, claiming labor law violations.

And neither had legal standing to work, or even live, in the United States.

Two different state appellate courts — one in Manhattan, one in Brooklyn — delivered two contradictory rulings on their rights to sue for lost wages.

The Appellate Division covering Manhattan and the Bronx reached the conclusion that damages such an injured worker can claim are limited to "the wages [he] would have been able to earn in his home country." But the Appellate Division that hears cases from the city's other boroughs, as well as Long Island and Westchester, reached a contrary result - - concluding that all workers, regardless of immigration status, are protected by the laws of this state.

The highest court in New York State, the New York Court of Appeals in Albany, has now resolved these contradictory decisions by upholding the one from Brooklyn. The court declared that construction workers injured on the job can seek damages for past and future loss of employment and income, even if they are "aliens," immigrants with no documents allowing them to work in this country.

Judge Victoria A. Graffeo of the state's highest court, wrote the combined opinion in Gorgonio Balbuena v. IDR Realty and Stanislaw Majlinger v. Cassino Contracting Corp., holding that both Balbuena and Majlinger could sue for lost wages.

The Manhattan judges were wrong, the Albany judges decided, to rule on the basis of a federal case known as Hoffman Plastics v. Natoinal Labor Relations Board, because the immigrant worker's conduct in the Hoffman case was unlawful (he used fraudulent documents to get hired). But, while both Gorgonio Balbuena and Stanislaw Majlinger were in the United States illegally, their conduct on the job was not illegal. Since it is illegal for an employer to hire employees without verifying authorization to work in this country, it is the employer who acts unlawfully by hiring an undocumented worker. No crime is committed by an "unauthorized alien" employee who takes the job, unless fraudulent documents were used, which neither Balbuena nor Majlinger did.

Ultimately, Judge Graffeo wrote, "the question is whether an award of past and future wages to an undocumented alien worker undermines the objectives of federal immigration law."

While defendants claimed that permitting an undocumented alien to recover lost wages is "in contravention of the purposes and objectives of federal immigration law, condones past transgressions and encourages future violations," plaintiffs, joined by Attorney General Elliot Spitzer, argued to the contrary. The plaintiffs' position was that an undocumented alien should be allowed to recover for monies lost as a result of defendants' failure to adhere to the work place safety requirements. They also argued that precluding lost wages would make it more financially attractive for noncompliant employers to hire illegal aliens, thereby undercutting the central goal of the federal act, and providing less of an incentive for employers to meet state labor requirements regulating occupational health and safety.

"It was the New York legislature's intent to achieve the purpose of protecting workers by placing 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor,' instead of on workers, who are scarcely in a position to protect themselves from accident," the Court held. "The Labor Law," the opinion said, "applies to all workers in qualifying employment situations - - regardless of immigration status - - and nothing . . . negates the universal applicability of this principle."

According to the 25 page opinion, "limiting a lost wages claim by an injured undocumented alien would lessen an employer's incentive to comply with the Labor Law and supply all of its workers the safe workplace that the Legislature demands.

"An absolute bar to recovery of lost wages by an undocumented worker would lessen the unscrupulous employer's potential liability to its alien workers and make it more financially attractive to hire undocumented aliens." The majority opinion, from which two judges dissented, said, "illegal aliens are willing to work in jobs that are more dangerous and undesirable - - and for less money - - than their legal immigrant and citizen counterparts, [and] would actually increase employment levels of undocumented aliens, not decrease it as Congress sought."

The cases can now proceed to trial where evidence may be introduced by an undocumented alien, about work history and prospects, just as in any other personal injury case. But the jury would be entitled to hear about the likelihood of future earnings in this country, including immigration status.

Eventually the issue might reach the Supreme Court of the United States which would be faced with New York's conclusion that "an undocumented alien performing construction work is not an outlaw engaged in illegal activity."

Emily Jane Goodman is a New York State Supreme Court Justice

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