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Rosa v. Partners in Progress3/4/2005
orities, condone prior violations of the immigration laws, and encourage future violations." Id. at 151. The Court suggested that to hold otherwise would allow the Board to award back pay "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 a criminal fraud." Id. at 149.
In his dissent, Justice Breyer, joined by Justices Stevens, Souter and Ginsburg, argued that failing to award back pay to an illegal alien unlawfully fired by an employer who knew of his status would encourage employers to hire illegal aliens because it would "lower the cost to the employer of an initial labor law violation." Id. at 155. The dissent pointed out that, among other things, the majority's decision addressed an award to an illegal alien who had obtained his job by submitting fraudulent documents, and argued, "Were the Board forbidden to assess backpay to a knowing employer - a circumstance not before us today . . . - this perverse economic incentive, which runs directly contrary to the immigration statute's basic objective, would be obvious and serious." Id. at 155-56.
Courts that have addressed whether Hoffman affects an illegal alien's ability to recover lost United States wages under state law have produced inconsistent results. In Veliz v. Rental Service Corp. USA, Inc., 313 F. Supp. 2d 1317 (M.D. Fla. 2003), the federal district court relied upon Hoffman to hold that a laborer's undocumented alien status precluded an award of lost United States wages, where the record reflected that the laborer "unlawfully subverted IRCA's enforcement mechanism tendering fraudulent identification to obtain employment." Veliz, 313 F. Supp. 2d at 1335-36. Similarly, in Hernandez-Cortez v. Hernandez, a federal district court, relying upon Hoffman, disallowed illegal alien plaintiffs' claims for lost United States earnings where the plaintiffs brought a negligence action for personal injuries resulting from a motor vehicle accident. Hernandez-Cortez v. Hernandez, No. Civ.A 01-1241-JTM, 2003 WL 22519678, at *6-7 (D. Kan. Nov. 4, 2003). The court noted that "while many illegal aliens do find employment in the United States, this argument does not overcome [8 U.S.C.] ยง 1324a and Hoffman." Id.
In Majlinger v. Cassino Contracting Corp., 766 N.Y.S.2d 332 (Sup. Ct. 2003), the trial court found that although New York appellate courts in the past had permitted illegal alien plaintiffs to prove lost United States wages, see, e.g., Public Adm'r of Bronx County v. Equitable Life Assur. Socy., 595 N.Y.S.2d 478 (App. Div. 1993); Collins v. NYC Health and Hospitals Corp., 607 N.Y.S.2d 387 (App. Div. 1994), the Hoffman decision "would appear to require this court to conclude that the plaintiff should not be permitted to recover for lost wages given his inability to prove he is legally authorized to work in this country." Majlinger, 766 N.Y.S.2d at 333-34. And, in Sanango v. 200 East Street Housing Corporation, 788 N.Y.S.2d 314, ____ (App. Div. 2004), a court vacated a jury verdict awarding the plaintiff lost United States earnings and remanded for a trial for a determination of the earnings that the plaintiff may have earned in his country of origin.
However, in Madeira v. Affordable Housing Foundation, Inc., 315 F. Supp. 2d 504, 507 (S.D.N.Y. 2004), a federal district court disagreed with Majlinger and Veliz. The court upheld a jury's award of lost earnings to an illegal alien plaintiff who brought an action against the site owner and general contractor to recover damages for personal injuries sustained in the course of his work on a construction site. Madeira, 315 F. Supp. 2d at 505, 507. In its ruling the court stated, "The jury obviously
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