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Rosa v. Partners in Progress3/4/2005
acity, that capacity may not be measured by what the illegal alien could have earned, but for his injury, unlawfully working in the United States. Rather, the defendants argue, the lost earning capacity must be measured by what the illegal alien could have earned lawfully working in his country of origin. While we agree that, in most circumstances, the defendants are correct, there are some circumstances in which an illegal alien's lost earning capacity may be measured by what he could have earned in the United States.
The defendants base their argument, in part, upon the United States Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), and decisional law that has followed. In Hoffman, the Court overturned an award of back pay to an illegal alien who had been unlawfully discharged by his employer in violation of the National Labor Relations Act (NLRA). Hoffman, 535 U.S. at 152. In reaching its decision, the Court relied upon the apparent conflict between an award of back pay and the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. ยง 1324a (2000), which is "a comprehensive scheme prohibiting the employment of illegal aliens in the United States." Hoffman, 535 U.S. at 147.
IRCA established "an extensive employment verification system . . . designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States. . . ." Id. (citations and quotation omitted). "IRCA mandates that employers verify the identity and eligibility of all new hires by examining specified documents before they begin work. If an alien applicant is unable to present the required documentation, the unauthorized alien cannot be hired." Id. at 148 (citation omitted).
"Similarly, if an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker's undocumented status." Id. "Employers who violate IRCA are punished by civil fines . . . and may be subject to criminal prosecution . . . ." Id. (citations omitted). "IRCA also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents." Id. "It thus prohibits aliens from using or attempting to use any forged, counterfeit, altered, or falsely made document or any document lawfully issued to or with respect to a person other than the possessor for purposes of obtaining employment in the United States." Id. (quotations omitted). "Aliens who use or attempt to use such documents are subject to fines and criminal prosecution." Id.
The Supreme Court pointed out:
Under the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA's enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations.
Id.
The Court held that "awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the [National Labor Relations] Board has no authority to enforce or administer. Therefore, . . . the award lies beyond the bounds of the Board's remedial discretion." Id. at 149. The Court concluded that "allowing the Board to award backpay to illegal aliens would unduly entrench upon explicit prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration auth
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