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Rosa v. Partners in Progress3/4/2005
e is not entitled." Rodriguez, 232 Cal. Rptr. at 158. Allowing an illegal alien to recover lost United States earnings creates a paradoxical situation in which an illegal alien can lawfully become entitled to the value of United States wages only if he becomes physically unable to work. Although the failure to award such damages may conflict with the cardinal principle of damages in Anglo-American law, which is to provide compensation for injury caused to a plaintiff by a defendant's breach of duty, Carey v. Piphus, 435 U.S. 247, 254 (1978), we hold that generally an illegal alien may not recover lost United States earnings, because such earnings may be realized only if that illegal alien engages in unlawful employment.
Nonetheless, tort deterrence principles provide a compelling reason to allow an award of such damages against a person responsible for an illegal alien's employment when that person knew or should have known of that illegal alien's status. The threat of tort liability acts as an incentive to reduce the risk of injuries. Estate of Cargill v. City of Rochester, 119 N.H. 661, 666 (1979). To refuse to allow recovery against a person responsible for an illegal alien's employment who knew or should have known of the illegal alien's status would provide an incentive for such persons to target illegal aliens for employment in the most dangerous jobs or to provide illegal aliens with substandard working conditions. It would allow such persons to treat illegal aliens as disposable commodities who may be replaced the moment they are damaged. Such a result is incompatible with tort deterrence principles.
We recognize that there may be no other contexts "in which a person who has derived income from an illegal activity is permitted, after a personal injury forces him to abandon that activity, to recover damages based on the lost stream of illegal income through judicial proceedings in a court of law." Sanango, 788 N.Y.S.2d at _____. We also recognize that "estoppel by the employer’s acts" should not bar "the enforcement of our country’s Immigration laws." Rivera v. Nibco, Inc., 384 F.3d 822, 823 (9th Cir. 2004) (Bea, J., dissenting from denial of rehearing en banc). Allowing recovery of lost wages under limited circumstances will not, in our opinion, bar enforcement of our immigration laws. And, although allowing an illegal alien to recover against such a person may transform the illegal alien’s unlawful wages into lawful compensation , a person responsible for an illegal alien’s employment may avoid this situation by refusing to employ the illegal alien in the first place. Surely, such a rule will not "frustrate explicitly stated congressional public policy." Id.
IRCA provides that it is unlawful to hire an alien knowing that he is an unauthorized alien, or to fail to comply with IRCA's employment verification system. 8 U.S.C. § 1324a(a)(1)(A), (B). IRCA "places an affirmative duty on employers to determine that their employees are authorized it has been held that an employer is imputed with constructive knowledge that a worker is unauthorized if the employer deliberately fails to investigate suspicious circumstances." Zamora v. Elite Logistics, Inc., 316 F. Supp. 2d 1107, 1119 (D. Ka. 2004) (citing New El Rey Sausage Co. v. U.S. I.N.S., 925 F.2d 1153, 1157-58 (9th Cir. 1991)). Given the strict requirements of IRCA and the compensation and deterrence principles of tort law, a rule holding a person responsible for an illegal alien's employment liable for lost United States earnings when that person knew or should have known of an illegal alien's status will not undermine the policy goals of IRCA.
We recognize that defendants Partners and Wrenn, as general contractors,
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