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Rosa v. Partners in Progress3/4/2005
are not direct employers of the plaintiff. Yet, IRCA does not excuse general contractors who knowingly employ an illegal alien. 8 U.S.C. ยง 1324a(a)(4) (" person or other entity who uses a contract, subcontract, or exchange . . . to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien . . . shall be considered to have hired the alien for employment in the United States in violation of [IRCA]."). Nor should a general contractor be excused from compensating an illegal alien for lost United States earnings when the general contractor knew or should have known of that illegal alien's status. We choose to hold a general contractor to a standard based upon constructive knowledge because to hold otherwise would provide a general contractor with a convenient device to insulate itself from damages, because it would be all too easy to claim ignorance.
Partners argues that an illegal alien should be barred from claiming lost United States earnings because the "very nature of an undocumented worker 's uncertain and unstable status in the United States militates against permitting him to speculate as to wages earned while in this country." As Partners points out, an illegal alien could, in theory, be deported at any time. See Rodriguez, 232 Cal. Rptr. at 158. While an illegal alien's potential to remain in the country and continue to work here may be uncertain and difficult to prove, we hold that, as a matter of public policy, a person responsible for an illegal alien's employment who knew or should have known of that illegal alien's status may not employ an illegal alien's potential for deportation as a bar to that illegal alien's recovery of lost United States earnings.
A person responsible for an illegal alien's employment may be held liable for lost United States wages if that illegal alien can show that the person knew or should have known of his status, yet hired or continued to employ him nonetheless. Further, although IRCA penalizes an illegal alien who submits fraudulent documents, such fraud will not bar recovery by an illegal alien unless the person responsible for such employment reasonably relied upon those documents.
We now address the third transferred question - the extent to which a defendant may introduce evidence of the illegal alien's status to rebut a claim for lost United States earnings. Generally, an illegal alien may not recover lost United States earnings. Thus, an illegal alien's status, though irrelevant to the issue of liability, see Melendres v. Soales, 306 N.W.2d 399, 402 (Mich. Ct. App. 1981), is relevant on the issue of lost earnings. The plaintiff argues that evidence of his illegal alien status is unfairly prejudicial. Though evidence of his status may well be prejudicial, such evidence, as described above, is essential should an illegal alien wish to pursue a claim for lost earning capacity measured at United States wage levels.
Remanded.
BRODERICK, C.J., and NADEAU and DUGGAN, JJ., concurred.
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