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Oro v. 23 East 79th Street Corp.11/9/2005
e wages the plaintiff has earned in this country, and no party in this case argues, and no court has held, that an undocumented alien may be deprived of wages for work already performed" (id. at *8).
The holding in Majlinger does much to address the disturbing evidence that at least some employers have attempted to use Hoffman as an excuse to avoid paying to undocumented aliens wages for work actually performed (a construction of Hoffman that both this court and the Appellate Term for the 9th and 10th Judicial Districts have rejected [see Garcia v Pasquareto, NYLJ, Aug. 4, 2005 (App Term, 9th & 10th Jud Dists); Gomez v Falco, 6 Misc 3d 5 (App Term, 2d & 11th Jud Dists 2004)]), clarifying that "[IRCA] is not designed to prevent compensation of undocumented aliens (either for work already performed or for work 'to be performed') but to prevent the employment of undocumented aliens in the first instance" (Majlinger, ___ AD3d ___, 2005 NY Slip Op 6785 at *11).
The Majlinger court also noted that as between the worker and the government, the act of submitting fraudulent documents to secure employment is unlawful, and between the employer and the government, employing a worker who does not present proper work authorization is illegal. However, between the worker and the employer "there is a contract of employment, under which the worker is entitled to be paid for his or her work. Moreover, as between the worker and an alleged tortfeasor, there are duties under the common law and the New York statutes governing workplace safety," and none of these relationships and duties are contingent upon a worker's compliance with federal immigration laws (id. at *7). It found no analogy to case law barring recovery of damages for a lost stream of income gained from illegal activities (cf. Sanango, 15 AD3d at 43), noting that " n undocumented alien performing construction work is not an outlaw engaged in illegal activity, such as bookmaking or burglary" (Majlinger, ___ AD3d ___, 2005 NY Slip Op 6785 at *10).
For all of these reasons, the Second Department in Majlinger adhered to its prior decisions holding that a plaintiff who may be an undocumented immigrant is entitled to recover lost wages, and that plaintiff's immigration status is relevant to a determination of such claims, presenting an issue of fact to be resolved by the trier of fact:
"The jury may take the plaintiff's status into account, along with the myriad other factors relevant to a calculation of lost earnings, in determining, as a practical matter, whether the plaintiff would have continued working in the United States throughout the relevant period, or whether his or her status would have resulted in, e.g., deportation or voluntary departure from the United States" (id. at *11; see also Vasquez v Sokolowsky, 277 AD2d 370 ; Gomez v Long Is. R.R., 201 AD2d 455 ).
Therefore, plaintiff in the present matter may likewise seek to establish his claim for lost earnings at trial, and evidence of his own immigration status will be relevant to that inquiry.
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