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BORDER WARS: ILLEGAL IMMIGRATION
A. Blackwell Stieglitz, Esquire & Gina E. Romanik, Esquire
On or about February 6, 2006, the Plaintiff was involved in a motor vehicle accident in The United States . At the time, the Plaintiff was on his way to work. As a result of the accident, the Plaintiff claimed, in part, lost wages and loss of earning capacity for the work he performed as a house painter
The Plaintiff is not a citizen of the United States. He is a citizen of the Dominican Republic and a resident of Santo Domingo. He visits the United States pursuant to a I-90 visa as a visitor for six months at a time.
The Plaintiff has been employed in The United States by ABC Painting since 2000. The Plaintiff has supplied fraudulent information to ABC Painting in order to earn wages in the United States since he is not legally able to work here. The Plaintiff does not have a social security number. He has provided one to his employer, in order to receive payment for work performed in the United States. The Social Security Number belongs to his son.
At the time of the accident, the Plaintiff was not eligible for employment in the United States, as this violated the United States' immigration laws. Veliz v. Rental Service Corp. USA, Inc. To hold otherwise trivializes the immigration laws, and condones and encourages future violations. In 1986, Congress enacted the Immigration Reform and Control Act ("the IRCA"), "a comprehensive scheme prohibiting the employment of illegal aliens in the United States." See Veliz citing to Hoffman Plastic Compounds, Inc. v. NLRB. The most important part of the IRCA is an extensive "employment verification system." It requires employers to verify the identity and eligibility of all new hires by examining specified documents before they commence work. The specified documents include a "social security account number card", or any "other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable".
If an alien applicant does not present the requisite documentation, he or she cannot be hired. Along the same lines, if an employer unknowingly hires an unauthorized alien, and later discovers the workers' undocumented status, the employer is required to discharge the worker. Employers violating the IRCA's employment verification system are subject to civil fines and criminal prosecution. Additionally, unauthorized aliens undermining or attempting to undermine the employer verification system are subject to fines and/or criminal prosecution. Specifically, undocumented aliens are prohibited from using or attempting to use "any forged, counterfeit, altered, or falsely made document" or "any document lawfully issued to or with respect to a person other than the possessor" for purposes of obtaining employment in the United States.
The United States Supreme Court has determined that "it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies…Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA's enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations."
The record in this instance indicates that the Plaintiff unlawfully subverted the IRCA's enforcement mechanism by tendering fraudulent identification information to obtain employment. Specifically, during the Plaintiff's deposition he testified that he did not have a social security number, but the documents received from ABC Painting revealed that the Plaintiff received wages by providing a social security number that did not belong to him. In fact, he used his son's social security number to gain employment.
In Hoffman Plastic Compounds, Inc. v. NLRB, the United States Supreme Court concluded that the National Labor Relations Board (NLRB) could not award back pay to an undocumented alien who had been terminated in violation of the National Labor Relations Act (NLRA) because it "would unduly trench upon explicit statutory prohibitions critical to federal immigration policy", "encourage the successful evasion of apprehension by immigration authorities . . condone prior violations of the immigration laws," and "encourage future violations."
The Veliz Court determined that allowing a judgment predicated on wages that could not lawfully have been earned, and on a job obtained by utilizing fraudulent information would be "contrary to both the letter and spirit of the IRCA, whose salutory purpose it would simultaneously undermine." Majlinger v. Cassino Contracting Corp., (dismissing a claim for lost wages in a negligence action predicated on work-related injury because plaintiff was unable to prove that he was legally authorized to work in the United States); Hernandez-Cortez v. Hernandez, (finding that plaintiff's status as an illegal alien precludes his recovery for lost income based on projected earnings in the United States).
Since the Plaintiff here was illegally employed in the United States at the time of the accident, he should not be allowed a claim for lost wages and loss of earning capacity for work he never was allowed to perform. You will doubtless have an opportunity to offer this proposition as a defense either now or soon in the future.
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