Undocumented Workers and Lost Future Earnings
| Jurisdiction | Colorado,United States,Federal |
| Citation | Vol. 43 No. 11 Pg. 61 |
| Pages | 61 |
| Publication year | 2014 |
Articles
Tort and Insurance Law
Undocumented Workers and Lost Future Earnings
By Chad Lieberman, Marc Brosseau.
Tort and Insurance Law articles provide information concerning current tort law issues and insurance issues addressed by practitioners representing either plaintiffs or defendants in tort cases. They also address issues of insurance coverage, regulation, and bad faith.
Coordinating Editor
William P. Godsman of the Law Office of William Godsman, Denver—(303) 455-6900, willgodsman@gmail. com
Lost future earnings are a damages item based on future potential and unearned wages. Immigration issues become intertwined with litigation issues when an undocumented worker is an injured plaintiff seeking damages. This article explores whether undocumented workers may seek lost future earnings as a damages item in Colorado despite an inability to legally obtain employment in this country.
The U.S. Supreme Court has never heard a case on undocumented workers' access to the courts. However, like many jurisdictions, the Tenth Circuit Court of Appeals has long held that undocumented workers have unfettered access to the U.S. legal system.[1] Access is one component, but arguably damages are the most controversial.
For example, consider the common case of an undocumented worker rear-ended by another vehicle while driving down 1-25. The undocumented worker's lawsuit will likely be grounded in negligence and will seek economic damages that include lost future earnings.[2] However, if that undocumented worker is in fact not legally permitted to work in the United States, should he be entitled to claim lost future earnings? If so, should those damages be based on U.S. wage and employment data? Should the jury be allowed to consider the plaintiff's status as an undocumented worker when awarding those damages? These are complex questions that are embroiled in legal, racial, social, political, and ethnic undertones, and the courts have only begun their attempt at answering them. Immigration is a major political issue that shows no signs of being resolved in the near future. Like the political landscape, the legal framework in which the courts are to operate with regard to immigration—or least undocumented workers—is less than clear.
The Hoffman Plastic Compounds Opinion
The U.S. Supreme Court has never commented directly on the issue of whether undocumented workers can claim personal injury damages in the form of lost future earnings. However, to some courts and pundits, the U.S. Supreme Court came close when, in 2002 in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board,[3] it decided whether undocumented workers could claim back-pay as damages under claims for violations of the National Labor Relations Act (NLRA).
In 1988, Jose Castro was hired by Hoffman Plastic Compounds as a machinist.[4] Castro was fired three years later after attempting to organize a union.[5] Castro subsequently sued for back-pay and the case was heard by the National Labor Relations Board (NLRB), which determined that Hoffman violated the NLRA and awarded back-pay to Castro for his time unemployed.[6] During the hearings, Castro admitted he was an undocumented worker and had obtained employment at Hoffman using falsified documentation.[7]
The U.S. Supreme Court reversed the award in a 5-4 opinion authored by Chief Justice Rehnquist.[8] The Court held that the Immigration Reform and Control Act (IRCA) criminally prohibits undocumented workers from working in the United States and prohibits employers from employing those individuals.[9] The Court further held that IRCA's provisions make it impossible for an undocumented worker to obtain employment in the United States without one or more parties violating congressional immigration policies.[10] The Court concluded that it would be improper to
award back-pay to an [undocumented worker] for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by criminal fraud.[11]
The Court made three further observations: (1) an award of back-pay in this situation would trivialize immigration laws and encourage future violations; (2) had Castro been deported, he would not be eligible for back-pay; and (3) Castro would have been unable to mitigate his damages without further criminal activity.[12] To some, the decision in Hoffman was narrowly tailored to specific violations and specific claims for back-pay. To others, the dicta in Hoffman has been used to bar, limit, or allow undocumented workers to seek lost future earnings.
The Effect of Hoffman Across the Country
The interpretation of the Hoffman holding has been wildly inconsistent across the country.[13] On one end of the spectrum are courts that view Hoffman as a very narrow opinion related only to back-pay damages in NLRB-related cases and, thus, inapplicable to state common law personal injury damages.[14] These courts essentially dismiss Hoffman as irrelevant to the issue of lost future earnings and, without any further guidance from higher courts, allow undocumented workers to claim lost future earnings while disallowing the jury to consider the plaintiff's illegal status.
The next line of rulings are from courts that interpret Hoffman as a guideline to allowing undocumented workers to claim lost future earnings in specific factual circumstances.[15] These courts essentially allow an undocumented worker to pursue a claim for lost future earnings if that plaintiff was not shown to be otherwise violating existing immigration laws.
Taking a step further, some courts tend to focus on relevancy from an evidentiary standpoint. These courts generally conclude that immigration status can be factually relevant to a plaintiff's claim for lost future earnings but do not provide further guidance on admissibility.[16] These courts do not bar outright a claim for lost future earnings. Rather, they take the position that the plaintiff's illegal status is relevant to the damages question and potentially admissible.
Toward the other end of the spectrum are courts that deny an undocumented worker's claim for lost future earnings in factually specific situations.[17] Finally, on the other end of the spectrum are courts that hold that the analysis in Hoffman bars an undocumented worker's claim for lost future earnings in the United States.[18] These courts establish a bar based on the decision in Hoffman by holding that not only is the plaintiff's illegal status relevant, but the relevancy thereof destroys the plaintiff's ability to claim lost future earnings as a damages item.
The courts, in general, have been reluctant to comment on immigration policy issues. This may be because there is no clear congressional policy on illegal immigration in this country. IRCA is a method for imposing fines on employers who employ undocumented...
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