Work Authorization Documents

A recent decision by a New York State appeals court has provided employers with yet another reason to verify scrupulously the documents provided to it by potential employees. In Coque v. Wildflower Developers, et al., No. 18365/01, App. Div., 3rd Dept., Nov. 12, 2008, the court held that undocumented workers who submit fraudulent documents could nonetheless receive damage awards, including future lost wages for on the job injuries.

Background

In Coque, Luis Coque was injured on a construction work site after he fell from a makeshift scaffold. He incurred severe injuries that rendered him a paraplegic. Thereafter, Coque commenced an action against his employer and several other defendants, asserting violations of New York State Labor Law, as well as claims of common law negligence. Defendants interposed a number of affirmative defenses including the fact that the plaintiff was an illegal alien and, therefore, was not entitled to recover any lost wages. Apparently, when the plaintiff had applied for employment, he had submitted only a Social Security card and no other documentation supporting his ability to work lawfully in the United States. As a matter of law, a Social Security card by itself is insufficient proof of worker eligibility. Nonetheless, the lower court denied defendants' motions, finding that there was a question of fact as to whether the plaintiff had actually obtained his employment by submitting false documentation. The case then proceeded to trial, and the plaintiff admitted that he was, in fact, an undocumented worker and that he had submitted a fraudulent Social Security card at the time he was hired. The jury issued a verdict in favor of the plaintiff and awarded him $42,000 for lost wages, $60,000 for future lost wages, $500,000 for past pain and suffering, $1,250,000 for future pain and suffering, $585,354 for past medical expenses and $863,000 for future medical expenses.

The defendants maintained that the plaintiff could not receive any award of lost wages due to his status as an undocumented alien. They argued that his submission of admittedly fraudulent documentation barred any such relief. This claim was rejected by the lower court and that decision was affirmed by the Appellate Division.

On Appeal

The appeals court noted that the Immigration Reform and Control Act (“IRCA”) requires every employer, before hiring any person, to verify that the person is not an unauthorized alien. Employers are required to examine specified documents that establish the person's identity and eligibility for employment in the United States by completing an “I-9″ form. The court cited Hoffman Plastics Compounds v. National Labor Relations Board, 535 U.S. 137 (2002), where the United States Supreme Court held that an undocumented alien that had induced an employer to hire him was ineligible to receive back pay from an employer that had unlawfully fired him for union activity. The Supreme Court concluded that awarding back pay to a worker that had committed a criminal violation of IRCA would trivialize the nation's immigration laws and would result in future violations. Back pay, of course, is different from other kinds of damages such as pain and suffering and medical expenses; wages are usually subject to taxation and other withholdings, which generally require a Social Security number or some other kind of authorization to work in the United States.

The court in Coque, however, distinguished Hoffman, noting that while the plaintiff had submitted a fraudulent Social Security card, his employer had also violated IRCA when it failed to consider additional documentation as required by the I-9 form. According to the court, an employer who engages in a perfunctory review of documentation, or no review at all, cannot later complain about the employee's illegal status. Thus, the court concluded that in order to deny the plaintiff the opportunity to assert a claim for lost wages, “the false document must actually induce the employer to offer employment to the plaintiff.” The mere submission of false documentation does not preclude a plaintiff from recovering damages for lost wages.

If the employer was, or should have been, aware of the plaintiff's immigration status, and nonetheless hired the plaintiff 'with a wink and a nod' ' the false document was not necessary 'to obtain employment' ' If the employer hires the employee with knowledge of the employee's undocumented status, or without verifying the employee's eligibility for employment, the employer has not been induced by the false document to hire the employee and, thus, the employee has not 'obtained employment by' submitting the false document. Coque at * 6.

The Burden Is on the Employer

The court thus squarely placed the burden on employers to demonstrate that they engaged in a careful review of documentation submitted by an employee. It is the employer's knowledge of (or willful blindness) to the plaintiff's undocumented status that will determine if the plaintiff is able to recover lost wages.

The court also believed that its decision was based on sound public policy. An employer should not be rewarded for its failure to comply with immigration laws by being relieved of liability for failure to provide a safe workplace. Not allowing employees to recover damages under these circumstances would, in the court's view, result in an unjustified windfall to employers who hire illegal aliens and then deny those employees the compensation they deserve. According to the court, a jury should be the entity that considers the plaintiff's immigration status when determining the amount of lost wages, if any.

The court's decision in Coque comes on the heels of another New York appellate court's decision, Amoah v. Mallah Management, LLC., __A.D.3d __, 866 N.Y.S.2d 797 (1st Dept. 2008), which held that an undocumented alien who submitted false documentation to an employer at the time of hiring was not precluded from obtaining Worker's Compensation benefits, regardless of whether the employer violated IRCA in hiring the employee.

The court in Amoah, as in Coque, noted that denying the employee compensation would provide an economic incentive to employers to violate IRCA by disregarding the employment verification system and would undermine IRCA's primary goal of combating the employment of undocumented workers.

Conclusion

These decisions appear to be following a trend of permitting
undocumented workers to recover the same kinds of damages as other employees working in the United States. Indeed, courts in other jurisdictions have also held that illegal aliens may sue to recover damages for lost wages and have left to the jury the issue of considering the individual's undocumented status in determining the amount of damages, if any. In any case, employers must be prepared to defend claims brought by undocumented employees just as if they were legally working in the United States. To avoid such claims, an employer must demonstrate that it has a proper verification system in place to ensure that applicants submit authentic documentation in support of their application. Otherwise, employers may be forced to pay both the past and future earnings of the injured individual.

Mark N. Reinharz, a member of this newsletter's Board of Editors, is a partner in the Garden City, NY, office of Bond, Schoeneck & King, PLLC and represents management in all areas of labor and employment law.

A recent decision by a New York State appeals court has provided employers with yet another reason to verify scrupulously the documents provided to it by potential employees. In Coque v. Wildflower Developers, et al., No. 18365/01, App. Div., 3rd Dept., Nov. 12, 2008, the court held that undocumented workers who submit fraudulent documents could nonetheless receive damage awards, including future lost wages for on the job injuries.

Background

In Coque, Luis Coque was injured on a construction work site after he fell from a makeshift scaffold. He incurred severe injuries that rendered him a paraplegic. Thereafter, Coque commenced an action against his employer and several other defendants, asserting violations of New York State Labor Law, as well as claims of common law negligence. Defendants interposed a number of affirmative defenses including the fact that the plaintiff was an illegal alien and, therefore, was not entitled to recover any lost wages. Apparently, when the plaintiff had applied for employment, he had submitted only a Social Security card and no other documentation supporting his ability to work lawfully in the United States. As a matter of law, a Social Security card by itself is insufficient proof of worker eligibility. Nonetheless, the lower court denied defendants' motions, finding that there was a question of fact as to whether the plaintiff had actually obtained his employment by submitting false documentation. The case then proceeded to trial, and the plaintiff admitted that he was, in fact, an undocumented worker and that he had submitted a fraudulent Social Security card at the time he was hired. The jury issued a verdict in favor of the plaintiff and awarded him $42,000 for lost wages, $60,000 for future lost wages, $500,000 for past pain and suffering, $1,250,000 for future pain and suffering, $585,354 for past medical expenses and $863,000 for future medical expenses.

The defendants maintained that the plaintiff could not receive any award of lost wages due to his status as an undocumented alien. They argued that his submission of admittedly fraudulent documentation barred any such relief. This claim was rejected by the lower court and that decision was affirmed by the Appellate Division.

On Appeal

The appeals court noted that the Immigration Reform and Control Act (“IRCA”) requires every employer, before hiring any person, to verify that the person is not an unauthorized alien. Employers are required to examine specified documents that establish the person's identity and eligibility for employment in the United States by completing an “I-9″ form. The court cited Hoffman Plastics Compounds v. National Labor Relations Board , 535 U.S. 137 (2002), where the United States Supreme Court held that an undocumented alien that had induced an employer to hire him was ineligible to receive back pay from an employer that had unlawfully fired him for union activity. The Supreme Court concluded that awarding back pay to a worker that had committed a criminal violation of IRCA would trivialize the nation's immigration laws and would result in future violations. Back pay, of course, is different from other kinds of damages such as pain and suffering and medical expenses; wages are usually subject to taxation and other withholdings, which generally require a Social Security number or some other kind of authorization to work in the United States.

The court in Coque, however, distinguished Hoffman, noting that while the plaintiff had submitted a fraudulent Social Security card, his employer had also violated IRCA when it failed to consider additional documentation as required by the I-9 form. According to the court, an employer who engages in a perfunctory review of documentation, or no review at all, cannot later complain about the employee's illegal status. Thus, the court concluded that in order to deny the plaintiff the opportunity to assert a claim for lost wages, “the false document must actually induce the employer to offer employment to the plaintiff.” The mere submission of false documentation does not preclude a plaintiff from recovering damages for lost wages.

If the employer was, or should have been, aware of the plaintiff's immigration status, and nonetheless hired the plaintiff 'with a wink and a nod' ' the false document was not necessary 'to obtain employment' ' If the employer hires the employee with knowledge of the employee's undocumented status, or without verifying the employee's eligibility for employment, the employer has not been induced by the false document to hire the employee and, thus, the employee has not 'obtained employment by' submitting the false document. Coque at * 6.

The Burden Is on the Employer

The court thus squarely placed the burden on employers to demonstrate that they engaged in a careful review of documentation submitted by an employee. It is the employer's knowledge of (or willful blindness) to the plaintiff's undocumented status that will determine if the plaintiff is able to recover lost wages.

The court also believed that its decision was based on sound public policy. An employer should not be rewarded for its failure to comply with immigration laws by being relieved of liability for failure to provide a safe workplace. Not allowing employees to recover damages under these circumstances would, in the court's view, result in an unjustified windfall to employers who hire illegal aliens and then deny those employees the compensation they deserve. According to the court, a jury should be the entity that considers the plaintiff's immigration status when determining the amount of lost wages, if any.

The court's decision in Coque comes on the heels of another New York appellate court's decision, Amoah v. Mallah Management, LLC., __A.D.3d __, 866 N.Y.S.2d 797 (1st Dept. 2008), which held that an undocumented alien who submitted false documentation to an employer at the time of hiring was not precluded from obtaining Worker's Compensation benefits, regardless of whether the employer violated IRCA in hiring the employee.

The court in Amoah, as in Coque, noted that denying the employee compensation would provide an economic incentive to employers to violate IRCA by disregarding the employment verification system and would undermine IRCA's primary goal of combating the employment of undocumented workers.

Conclusion

These decisions appear to be following a trend of permitting
undocumented workers to recover the same kinds of damages as other employees working in the United States. Indeed, courts in other jurisdictions have also held that illegal aliens may sue to recover damages for lost wages and have left to the jury the issue of considering the individual's undocumented status in determining the amount of damages, if any. In any case, employers must be prepared to defend claims brought by undocumented employees just as if they were legally working in the United States. To avoid such claims, an employer must demonstrate that it has a proper verification system in place to ensure that applicants submit authentic documentation in support of their application. Otherwise, employers may be forced to pay both the past and future earnings of the injured individual.

Mark N. Reinharz, a member of this newsletter's Board of Editors, is a partner in the Garden City, NY, office of Bond, Schoeneck & King, PLLC and represents management in all areas of labor and employment law.