Determining the Proper Measure of Lost Wage Damages for Aliens Injured in the United States, 1114 SCBJ, SC Lawyer, November 2014, #30
| Author | David C. Marshall, J. |
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0When an undocumented worker seeks lost wages in the U.S. court system, what is the proper measure of damages?
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\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The influx of unauthorized workers into the American labor market is a matter of growing national concern. Recent surveys demonstrate that immigration is one of the biggest concerns of Americans today having increased in recent months due to the migration from Mexico of tens of thousands of unaccompanied children into the United States. While the discussion generally focuses on the political and social considerations and effects of illegal immigration, there are important legal issues that attorneys should analyze when handling cases involving undocumented aliens.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Without question, the primary incentive for aliens to risk their lives to come to the United States illegally is because they are able to find better paying jobs and improved quality of life. Although there are federal and state laws prohibiting the employment of unauthorized workers, the fact remains that aliens are coming to America, finding work and creating lives for themselves. This leads to the question of what protections are afforded to such aliens under U.S. law, for instance, when they have an employment claim against their employer, sustain a job-related injury, or have a simple personal injury claim against a third party. The courts are generally open to such claims, but what is the proper measure of damages for any alleged lost wages or earning capacity? Should such analysis be premised upon wages that might have been earned unlawfully in the United States, or upon lost wages that could have been earned lawfully in the plaintiffs country of residence? This article outlines pertinent legal authorities that might provide guidance in answering such questions.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Hoffman Plastic Compounds, Inc. v. NLRB,1 the National Labor Relations Board (NLRB) determined that an employer violated the National Labor Relations Act (NLRA) by selecting four employees for layoffs because they supported a union's organizing activities. One of the four employees was in the United States illegally, and all were awarded backpay by the NLRB after an administrative hearing. The U.S. Supreme Court held that the NLRB cannot award backpay to illegal aliens, as such relief is foreclosed by federal immigration law.2 Under the Immigration Reform and Control Act of 1986 (IRCA), "it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies."3 Thus, the Court held that such persons cannot recover backpay "for wages that could not lawfully have been earned, and for a job obtained in the first place by criminal fraud."4 Any other result "would unduly trench upon explicit statutory prohibitions critical to federal immigration policy"5 and "encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigrations laws, and encourage future violations."6
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In the wake of Hoffman, litigants argued that unauthorized workers were unable to recover anything for lost wages or earnings. However, courts typically rejected such arguments noting that Hoffman does not hold that the IRCA precludes courts from awarding damages to aliens otherwise allowable under federal or state law.7 The issue was thus refined to a more specific area of inquiry: determining the proper measure of damages for persons unlawfully in this country based on earnings in the United States or the country of the plaintiffs legal residence. Although Hoffman is not dispositive on this more narrow issue, several courts have used it to guide their decisions.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0South Carolina courts have not directly decided whether an undocumented worker may recover future lost United States wages, as opposed to future wages from the alien's country of origin. However, one district court in South Carolina has held that the IRCA does not preclude aliens from bringing federal and state labor law claims for withheld wages.8 The court noted that the general purpose of the IRCA is to diminish the attractive force of employment which, "like a magnet pulls illegal immigrants towards the United States."9 The court reasoned that allowing an employer to escape liability arising from violations of federal and state labor laws provides incentives to hire unauthorized aliens, thereby defeating the purpose of the IRCA to reduce employment opportunities of such persons.10
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Similarly, in the workers' compensation context, the S.C. Supreme Court has ruled that because the IRCA does not expressly preclude an alien from being considered an employee for workers' compensation benefits, the IRCA has no preemptive effect over state law and does not preclude an undocumented worker from receiving workers' compensation benefits.11 The court reasoned that allowing benefits to those people working in the United States illegally does not conflict with the IRCA's policy against hiring them. "To the contrary, disallowing benefits would mean unscrupulous employers could hire undocumented workers without the burden of insuring them, a consequence that would encourage rather than discourage the hiring of illegal workers."12
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In a personal injury case, another South Carolina district court held that the defendant was entitled to discover information about the plaintiff's work history and immigration status because that information is relevant to his claim for past and future wage loss damages.13 The court noted that should the plaintiff "not be lawfully eligible for past and future work in the United States on account of his immigration status, the same is relevant to his damages claim and [the] Defendant's defense of the claim."14 Accordingly, the court held that the defendant's right to discovery of such information outweighed any prejudice to the plaintiff resulting from the disclosure.15 From a discovery standpoint, other courts have reached similar conclusions.16
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Although South Carolina courts have held that an alien is entitled to recover damages for lost wages or diminished earning capacity, and that a plaintiff's immigration status is relevant to such analysis, the question remains whether an alien in South Carolina may recover future lost United States wages, as opposed to future wages from his or her country of origin. Accordingly, attorneys and trial courts should look to other jurisdictions for guidance in determining the proper measure of damages consistent with policy considerations, legal authority and evidentiary requirements. Not surprisingly, courts that have addressed whether Hoffman affects an alien's right to recover lost wages under state law, and what the proper method is for calculating such damages, have produced inconsistent results.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Many post-Hoffman jurisdictions hold that determining the measure of damages is a legal issue to be determined by the court, and that unauthorized workers may not recover future lost wages that might have...
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