Undocumented workers deserve protection, says New York high court.

New York's highest court has ruled that undocumented workers who are hurt on the job can receive back pay for lost wages, medical costs, pain and suffering, and future lost wages--even if they were working illegally. In a divided opinion, the New York Court of Appeals found that the federal Immigration Reform and Control Act (IRCA) does not preempt state labor laws.

(Balbuena v. IDR Realty, LLC, Slip Op. No. 01248, 2006 WL 396944 (N.Y. Feb. 21, 2006).)

The decision considered two cases that had split the appellate courts: Balbuena v. IDR Realty, which involved a Mexican construction worker who suffered skull fractures when he fell from a ramp; and Majlinger v. Casino Contracting Corp., where a construction worker from Poland sued when a scaffold he was standing on collapsed. In both cases, the workers said their injuries left them permanently unable to work. Gorgonio Balbuena had entered the United States illegally; Stanislaw Majlinger had entered legally but did not have legal working status.

The main question the high court took up was whether IRCA overrides state laws that require employers to keep safe working conditions. The court ruled that it does not and that employers have more incentive to obey the law if they realize that it applies to all workers, regardless of their legal status.

Writing for the majority, Judge Victoria Graffeo said, "The Supreme Court has recognized that, notwithstanding the federal government's exclusive control over immigration and naturalization, the 'states possess broad authority under their police powers to regulate the employment relationship to protect workers within the state,' which includes the power to enact 'laws affecting occupational health and safety.'"

The majority opinion also noted that the history of New York labor law clearly indicates that responsibility for worker safety lies with employers and not with laborers, "who [are] scarcely in a position to protect themselves from accidents."

In ruling as it did, the high court acknowledged that it was diverging from a key Supreme Court decision that held that workers who use false documents to get their jobs are not entitled to back pay--even when lost work results from an employer's unfair practices. (Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).)

The New York court said there was a clear difference between the two cases, because in Balbuena the workers did not use fraud to get their jobs.

"[The] plaintiffs here--unlike the alien in Hoffman--did not commit a criminal act under IRCA," the court said. "Notably, IRCA does not make it a crime to work without documentation.... We see no reason to equate the criminal misconduct of the employee in Hoffman to the conduct of the plaintiffs here since, in the context of [the] defendants' motions for partial summary judgment, we must presume that it was the employers who violated IRCA by failing to inquire into [the] plaintiffs' immigration status or employment eligibility."

The defense argued that paying damages to the workers amounted to an award for illegal contracting. It also said that such payments would undermine IRCA and encourage further violations of immigration law. But the majority was "unpersuaded" by this reasoning: To the contrary, it said, denying back pay to injured workers "would lessen the unscrupulous employer's potential liability to its alien workers and make it more financially attractive to hire undocumented aliens."

In his dissent, Judge Robert Smith said rewarding illegal conduct led to "unseemly" results. He concluded, "The wrong for which Balbuena and Majlinger seek compensation in the form of lost earnings is that their injuries have prevented them from working in the United States--exactly the result that IRCA was intended to accomplish."

In a footnote to the majority opinion, Graffeo responded, "The dissent does not acknowledge that Congress expressly indicated that IRCA was not intended to undermine existing statutory labor protections. The dissent's bar to an alien's recourse under the labor law actually rewards IRCA violations by employers and thereby promotes the employment of undocumented aliens. In the end, we believe that rewarding avoidance of the employment verification system under IRCA, while at the same time denying relief to a worker injured as a result of a workplace violation of state labor laws, constitutes that which is 'unseemly.'"