MAJLINGER v. Eliot Spitzer, etc., intervenor. (2005)

This appeal requires us to decide whether a New York court's award of damages for lost wages to an undocumented alien injured in a workplace accident is preempted by federal immigration policy.   We hold that an employer, general contractor, or property owner whose negligence or violation of New York's workplace safety statutes causes injury to a worker may not avoid liability for the worker's lost wages by virtue of the worker's status as an undocumented alien. Such a rule is not only compatible with, but furthers, Congress's policy of deterring the hiring of undocumented aliens.

The plaintiff, Stanislaw Majlinger, allegedly was injured in January 2001, when he fell from a scaffold while installing siding as an employee of J & C Home Improvement (hereinafter J & C).  The plaintiff commenced this action against various entities alleged to be property owners, general contractors, or their agents at the site of the accident.   J & C was not named as a defendant, either in the plaintiff's action or in the third-party action brought by three of the defendants.   The complaint alleged common-law negligence and violations of Labor Law §§ 200, 240, and 241(6).   In his bill of particulars, the plaintiff asserted that as a result of his injuries he was incapacitated from employment and he was seeking, inter alia, damages for lost earnings.

The plaintiff immigrated to the United States from Poland in November 2000.   He testified at his deposition that he was not aware of his immigration status, but he acknowledged that he did not have a Social Security number.   By counsel, he disclosed that he was in the United States on an extension of his original tourist visa.   In response to a discovery demand made by the defendants Cassino Contracting Corp. (hereinafter Cassino) and Veteran Properties, Inc. (hereinafter Veteran), and enforced by the Supreme Court, the plaintiff acknowledged that he was not in possession of any of the documents enumerated in the federal immigration statutes and regulations (see 8 USC § 1324a[b] [1] [B] [C][D];  8 CFR 274a.2[b][1][v] ) that would demonstrate his eligibility for employment in the United States.

Cassino and Veteran moved for summary judgment dismissing the plaintiff's lost wages claim on the ground that the plaintiff, as an undocumented alien, was not entitled to recover “unearned past and future lost wages in a personal injury action,” pursuant to the Immigration Reform and Control Act (8 USC § 1324a et seq.) (hereinafter the IRCA), as interpreted by the United States Supreme Court in Hoffman Plastic Compounds v. National Labor Relations Bd., 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271.   Cassino and Veteran argued that the plaintiff “cannot be awarded wages that the IRCA prohibits him from earning.”   The defendants third-party plaintiffs, Jack Thaon, Celebration, LLC, and New York City Partnership Housing Development Fund Company, the defendant D & Sons Construction Corp., and the third-party defendant separately moved for the same relief.

The Supreme Court granted the motions and, “[o]n constraint of Hoffman,” dismissed the claim for lost wages (Majlinger v. Cassino Contr. Co., 1 Misc.3d 659, 662, 766 N.Y.S.2d 332).   The court reasoned that “sanction [ing] the recovery of lost wages by an undocumented alien for work not performed would run contrary to both the letter and spirit of the IRCA” (id. at 662, 766 N.Y.S.2d 332).   The plaintiff appeals.

The Immigration and Nationality Act (8 USC § 1101 et seq.) (hereinafter the INA), inter alia, criminalizes unsanctioned entry into the United States by an alien (see 8 USC § 1325) and provides that any alien who was inadmissible upon entering the United States is deportable (see 8 USC § 1227[a] [1][A] ).   Prior to 1986, the INA evinced “at best ․ a peripheral concern with employment of illegal entrants” (DeCanas v. Bica, 424 U.S. 351, 360, 96 S.Ct. 933, 47 L.Ed.2d 43).   The INA did not “mak[e] it unlawful for an employer to hire an alien who is present or working in the United States without appropriate authorization,” and did not “ma[k]e it a separate criminal offense for an alien to accept employment after entering this country illegally” (Sure-Tan, Inc. v. National Labor Relations Bd., 467 U.S. 883, 892-893, 104 S.Ct. 2803, 81 L.Ed.2d 732).

In 1986 Congress enacted the IRCA, which makes it unlawful to employ any alien who is not authorized to work in the United States (see 8 USC § 1324a[a] ).   A House Judiciary Committee report accompanying the IRCA explained that “[e]mployment is the magnet that attracts aliens here illegally,” and that the statute's primary purpose was to prevent the employment of undocumented aliens by placing the onus on employers to verify their prospective employees' eligibility to work in the United States (HR Rep. No. 99-682[I], 99th Cong., 2d Sess., at 45, 46, reprinted in 1986 U.S. Code Cong. & Admin. News at 5649, 5650 [“This legislation seeks to close the back door on illegal immigration․ The principal means of [doing so] is through employer sanctions,” which is “the most humane, credible and effective way to respond to the large-scale influx of undocumented aliens”] ).   Accordingly, the IRCA requires that every employer, before hiring any person, verify that the person is not an unauthorized alien by examining documents that establish the person's identity and eligibility for employment in the United States (see 8 USC § 1324a[b] ).  The IRCA establishes civil and criminal penalties for employers who violate the statute (see 8 USC § 1324a[e], [f] ).  The IRCA also makes it unlawful to submit false or fraudulent documents to a prospective employer in order to satisfy the verification requirements (see 8 USC § 1324c[a] ), and an individual who does so is subject to criminal prosecution (see 18 USC § 1546[b] ).

In two cases decided after the enactment of the IRCA, this court and the Appellate Division, First Department, rejected arguments that the plaintiffs in wrongful death actions should be precluded from recovering the lost wages of alien decedents unlawfully employed in the United States (see Collins v. New York City Health and Hosps. Corp., 201 A.D.2d 447, 607 N.Y.S.2d 387;  Public Adm'r of Bronx County v. Equitable Life Assur. Socy., 192 A.D.2d 325, 595 N.Y.S.2d 478).   In Collins, we held that “the record fails to establish as a matter of law that any wages which the decedent might have earned would have been the product of illegal activity.   Rather, this question, as well as the length of time during which the decedent might have continued earning wages in the United States, and the likelihood of his potential deportation, are factual issues for resolution by the jury under all of the circumstances of the case as developed by a full trial” (Collins v. New York City Health and Hosps. Corp., supra at 448, 607 N.Y.S.2d 387 [citations omitted] ).   The court in Public Adm'r of Bronx County permitted the recovery of lost wages since the record in that case did not “support a conclusion, as a matter of law, that decedent's allegedly illegal conduct amounted to serious crimes that directly caused his injuries” (Public Adm'r of Bronx County v. Equitable Life Assur. Socy., supra at 326, 595 N.Y.S.2d 478).

In 2002 the United States Supreme Court decided Hoffman Plastic Compounds v. National Labor Relations Bd., 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271.   In that case, the employee, a native of Mexico who had never been legally admitted to, or authorized to work in, the United States, was hired by the employer after fraudulently presenting the birth certificate of an American-born friend.   The employer laid off the employee, and the National Labor Relations Board (hereinafter the NLRB) later determined that the employer had terminated the employee and three other workers “in order to rid itself of known union supporters” in violation of the National Labor Relations Act (hereinafter the NLRA) (id. at 140, 122 S.Ct. 1275).   To remedy that violation, the NLRB ordered the employer, inter alia, to offer reinstatement and back pay to the employee.

The Supreme Court held that the NLRB lacked the discretion to award back pay to the employee for a period during which he was an alien unauthorized to work in the United States.   The Court noted that in a decision predating the IRCA, it had held that the NLRA applied to undocumented aliens and that such an application of the statute did not conflict with then-existing federal immigration laws (see Sure-Tan, Inc. v. National Labor Relations Bd., 467 U.S. 883, 104 S.Ct. 2803, 81 L.Ed.2d 732). Indeed, the Court noted in Sure-Tan that the purposes of the immigration laws would be well served by extending the protection of the NLRA to undocumented aliens, because “[i]f an employer realizes that there will be no advantage under the NLRA in preferring illegal aliens to legal resident workers, any incentive to hire such illegal aliens is correspondingly lessened” (id. at 893, 104 S.Ct. 2803).   The Sure-Tan Court held, however, that in devising a remedy for the NLRA violations suffered by the employees in that case, who had returned to Mexico after being discharged, the NLRB was “obliged to take into account [the] equally important Congressional objective ․ of deterring unauthorized immigration” (id. at 903, 104 S.Ct. 2803 [internal quotation marks omitted] ).   Thus, the Court concluded that reinstatement “must be conditioned upon the employees' legal readmittance to the United States,” and the accrual of back pay must be tolled “during any period when they were not lawfully entitled to be present and employed in the United States” (id. at 903, 104 S.Ct. 2803).

In Hoffman, the Court explained that the IRCA, “a comprehensive scheme prohibiting the employment of illegal aliens in the United States,” had “significantly changed” the “legal landscape” (Hoffman Plastic Compounds v. National Labor Relations Bd., supra at 147, 122 S.Ct. 1275 [internal quotation marks omitted] ).   The Court held that an award of back pay to an alien for a period during which his employment in the United States was prohibited by the IRCA was impermissible.   The Court reasoned that:

“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.   The [NLRB] asks that we overlook this fact and allow it to award backpay to an illegal alien 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.   We find, however, that awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the [NLRB] has no authority to enforce or administer.   Therefore, as we have consistently held in like circumstances, the award lies beyond the bounds of the [NLRB's] remedial discretion․

“[A]llowing the [NLRB] to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations” (id. at 148-149, 151, 122 S.Ct. 1275).

In a recent pair of decisions, the Appellate Division, First Department, held that, in light of Hoffman, an undocumented alien may not be awarded lost earnings in a personal injury action based on wages he would have earned in the United States (see Sanango v. 200 E. 16th St. Hous. Corp., 15 A.D.3d 36, 788 N.Y.S.2d 314;  Balbuena v. IDR Realty, 13 A.D.3d 285, 787 N.Y.S.2d 35, adhered to on rearg. and lv. to appeal granted, 2005 N.Y.App.Div. LEXIS 5734 [May 24, 2005] ).   The court reasoned that “an award of damages herein based on the United States wages plaintiff might have earned unlawfully, but for his injury, would ‘unduly trench upon’ IRCA's federal immigration policy in substantially the same manner as did the NLRB backpay award in Hoffman ” (Sanango v. 200 E. 16th St. Hous. Corp., supra at 41, 788 N.Y.S.2d 314).   Accordingly, the court concluded that its holding in Public Adm'r of Bronx County v. Equitable Life Assur. Socy., supra was “no longer tenable after Hoffman ” (Sanango v. 200 E. 16th St. Hous. Corp., supra at 41, 788 N.Y.S.2d 314).   In Balbuena, Justice Ellerin dissented, expressing the view that awarding damages in state tort cases for wages that undocumented aliens could have earned in the United States “would not have any significant impact upon the IRCA's objectives of ‘prohibiting’ their employment,” and therefore such awards are not preempted by the IRCA (Balbuena v. IDR Realty, supra at 288, 787 N.Y.S.2d 35 [Ellerin, J., dissenting] ).

 The defendants in this case contend that the plaintiff, as an undocumented alien, is not entitled to recover lost wages because such a remedy is preempted by federal immigration policy, as expressed in the IRCA and the Hoffman decision.   When Congress enacts a statute “touching the rights, privileges, obligations or burdens of aliens as such ․ the statute is the supreme law of the land” (Hines v. Davidowitz, 312 U.S. 52, 63, 61 S.Ct. 399, 85 L.Ed. 581;  see U.S. Const., art. I, § 8[4];  Nyquist v. Mauclet, 432 U.S. 1, 10, 97 S.Ct. 2120, 53 L.Ed.2d 63 [“Control over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere”] ).   Under the Supremacy Clause (U.S. Const., art. VI, § 2), Congress is empowered to preempt state law.  “In the absence of explicit statutory language signaling an intent to pre-empt [a court may] infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation ․ or where the state law at issue conflicts with federal law” (Northwest Cent. Pipeline Corp. v. State Corp. Commn. of Kansas, 489 U.S. 493, 509, 109 S.Ct. 1262, 103 L.Ed.2d 509 [citations omitted] ).   Such a conflict arises where it is physically impossible to comply with both the federal and state laws (see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 10 L.Ed.2d 248) or where, “under the circumstances of this particular case, [the state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (Geier v. American Honda Motor Co., 529 U.S. 861, 873, 120 S.Ct. 1913, 146 L.Ed.2d 914, quoting Hines v. Davidowitz, supra at 67, 61 S.Ct. 399).   There exists, however, “a strong presumption against federal preemption of state and local legislation” (Richmond Boro Gun Club v. City of New York, 97 F.3d 681, 687), particularly when that legislation regulates “matters related to health and safety” (Hillsborough County, Florida v. Automated Med. Labs., 471 U.S. 707, 715, 105 S.Ct. 2371, 85 L.Ed.2d 714).  “[A] claim traditionally within the domain of State law will not be superseded by Federal law ‘unless that was the clear and manifest purpose of Congress' ” (Nealy v. U.S. Healthcare HMO, 93 N.Y.2d 209, 217, 689 N.Y.S.2d 406, 711 N.E.2d 621, quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 [internal quotation marks omitted];  see Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700).

Clearly, Congress has neither expressly preempted awards of lost wages to undocumented aliens in state-court personal injury actions nor entirely occupied the fields of workplace safety and common-law torts.   Thus, the principal question presented in this case is whether an award of lost wages to an undocumented alien presents an obstacle to the Congressional objectives underlying the IRCA.

The IRCA, as construed by the Hoffman Court, “forcefully made combating the employment of illegal aliens central to the policy of immigration law” (Hoffman Plastic Compounds v. National Labor Relations Bd., supra at 147, 122 S.Ct. 1275 [internal quotation marks omitted] ), and the Supreme Court determined that the objectives of the IRCA outweighed Congress's policy choices in the area of labor relations, to the extent of precluding the NLRB's award of back pay to an employee who had obtained the employment at which he sought fair treatment by criminally subverting the IRCA's enforcement mechanism.   There is no indication in the IRCA, however, that Congress intended to deprive undocumented aliens of their right to sue for personal injuries in state courts or to deprive them of the incidents thereof, such as the right to recover damages for lost wages.

To the contrary, a federal statute enacted in 1885 (Act of February 26, 1885, ch. 164, § 2, 23 Stat. 332), which provided that any contract of employment with an undocumented alien was void, was repealed in 1952 with the passage of the INA (see Immigration and Nationality Act, § 403[a][2], 66 Stat. 163, 279).   The INA, with certain exceptions, makes undocumented aliens who seek to enter this country for the purpose of performing labor ineligible to receive visas or to be admitted into the United States (see 8 USC § 1182 [a][5] ).   This alteration of the federal statute indicates that “Congress determined that the exclusion of certain aliens from admission to the United States was a more satisfactory sanction than rendering their contracts void and thus unjustifiably enriching employers of such alien laborers” (Gates v. Rivers Constr. Co., 515 P.2d 1020, 1023 [Alaska];  see Peterson v. Neme, 222 Va. 477, 481, 281 S.E.2d 869, 871 [“Although Congress ․ might have criminalized an illegal alien's acceptance of employment, or declared any employment contract into which he entered unenforceable, or required forfeiture of any wages collected under such a contract, Congress did none of these”] ).   While the IRCA subsequently added provisions prohibiting the hiring of undocumented aliens, the IRCA and the regulations that accompany it “do not purport to intrude into the area of what protections a State may afford these aliens” (Continental PET Tech., Inc. v. Palacias, 269 Ga.App. 561, 562-563, 604 S.E.2d 627, 630;  see Correa v. Waymouth Farms, 664 N.W.2d 324, 329 [Minn.] [“the IRCA was not intended to preclude the authority of states to award workers' compensation benefits to unauthorized aliens”];  HR Rep. No. 99-682[I], 99th Cong., 2d Sess., at 45, 58, reprinted in 1986 U.S. Code Cong. & Admin. News at 5649, 5662 [IRCA was not intended “to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards ․ to remedy unfair practices committed against undocumented employees”] ).   In the absence of an explicit statement of Congress's intent to deprive undocumented aliens of remedies to which they would otherwise be entitled in state courts, such a disability may not be inferred (see Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603, 622, 624-625, 3 L.Ed. 453;  Janusis v. Long, 284 Mass. 403, 406, 188 N.E. 228, 230).   Nor did the Supreme Court give any indication in Hoffman that undocumented aliens should be deprived of lost wages in state-court personal injury actions (see Continental PET Tech., Inc. v. Palacias, supra 269 Ga.App. at 564, 604 S.E.2d at 631 [“under Hoffman, labor protections other than backpay are available to illegal aliens”];  Tyson Foods, Inc. v. Guzman, 116 S.W.3d 233, 244 [Tex.Ct.App.] [Hoffman holding “only applies to an undocumented alien worker's remedy for an employer's violation of the NLRA and does not apply to common-law personal injury damages”] ).

In Sanango v. 200 E. 16th St. Hous. Corp., 15 A.D.3d 36, 788 N.Y.S.2d 314, the First Department concluded that there was no meaningful distinction between the award of back pay in Hoffman and an award of lost wages to an undocumented alien in a state-court personal injury action (id. at 41, 44, 788 N.Y.S.2d 314).   In our view, the First Department's interpretation of the Hoffman decision is unduly broad.   While the Supreme Court's statement in Hoffman that “awarding back pay to illegal aliens runs counter to policies underlying IRCA,” if read expansively and out of context, would require the denial of lost wages to undocumented aliens, it would also compel the conclusion that any sort of employment-related payment to an undocumented alien violates federal immigration policy.¹  Such a rule would prevent an undocumented alien injured in the workplace from recovering, inter alia, workers' compensation benefits and damages for pain and suffering, and might ultimately require overruling decisions confirming the right of an undocumented alien to commence an action in a New York court in the first instance (see e.g. Mazur v. Rock-McGraw, Inc., 246 A.D.2d 515, 666 N.Y.S.2d 939;  Alvarez v. Sanchez, 105 A.D.2d 1114, 482 N.Y.S.2d 184;  Nizamuddowlah v. Bengal Cabaret, Inc., 69 A.D.2d 875, 415 N.Y.S.2d 685;  Woo Sung Ling v. City of New York, 276 App.Div. 1026, 95 N.Y.S.2d 908;  Catalanotto v. Palazzolo, 46 Misc.2d 381, 383-384, 259 N.Y.S.2d 473).   As a result, employers of undocumented aliens would be free to ignore New York law governing workplace safety, labor relations, and the furnishing of workers' compensation coverage, to retaliate against workers who asserted any of their rights by reporting them to federal immigration authorities, to intimidate them by threatening to do so and, indeed, to withhold wages from employees altogether, with impunity.

In short, once Hoffman is construed broadly enough to apply to awards of lost wages in state-court personal injury actions, there may be nothing to prevent it from reaching so far as to eliminate all rights and protections to which undocumented aliens would otherwise be entitled (see Local 512, Warehouse & Office Workers' Union v. National Labor Relations Bd., 795 F.2d 705, 717-718, 718 n. 12 [collecting cases] ), including the right to receive any compensation at all for their work (see Martinez v. Fox Valley Bus Lines, 17 F.Supp. 576, 577 [rejecting personal injury defendant's position that if an alien is unlawfully present in the United States, “he may be despoiled of his property, contracts with him may be breached, that he may be unlawfully assaulted and injured, and that he is without redress”];  Janusis v. Long, supra 284 Mass. at 408, 188 N.E. at 230 [“Even an unlicensed dog is not an outlaw and is entitled to some rights”] ).   Such a result would wreak havoc on well-established legal principles, including the right of aliens to equal protection of the laws (see U.S. Const. Amend XIV;  Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786;  Nizamuddowlah v. Bengal Cabaret, Inc., 92 Misc.2d 220, 223, 399 N.Y.S.2d 854, affd. 69 A.D.2d 875, 415 N.Y.S.2d 685;  Dezsofi v. Jacoby, 178 Misc. 851, 855, 36 N.Y.S.2d 672), and may even implicate the constitutional prohibition of involuntary servitude (see U.S. Const. Amend XIII;  United States v. Kozminski, 487 U.S. 931, 948, 108 S.Ct. 2751, 101 L.Ed.2d 788 [“it is possible that threatening ․ an immigrant with deportation could constitute the threat of legal coercion that induces involuntary servitude”] ).   Accordingly, we believe that the holding of Hoffman must be construed narrowly.

As between an undocumented worker and the federal government, the act of submitting fraudulent documents in order to secure employment is unlawful (see 8 USC § 1324c[a] ).   As between the employer and the federal government, the act of hiring an undocumented worker knowingly or without verifying his or her employment eligibility is unlawful (see 8 USC § 1324a[a][1] ).   As between the undocumented worker and the employer, however, 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 (see Labor Law §§ 240[1], 241[6] ).   The contractual, statutory, and common-law duties owed to the worker are unrelated to, and do not depend on, the worker's compliance with federal immigration laws (see Mendoza v. Monmouth Recycling Corp., 288 N.J.Super. 240, 247, 672 A.2d 221, 224-225;  Janusis v. Long, supra 284 Mass. at 408, 188 N.E. at 231).

While the duties imposed on employers, property owners, and general contractors do serve important public policy interests, the enforcement of those duties through a personal injury action is ultimately a private matter between the parties, adjudicated by a court (cf. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1067, cert. denied 544 U.S. 905, 125 S.Ct. 1603, 161 L.Ed.2d 279 [it is “unlikely” that Hoffman applies in discrimination actions under Title VII of the Civil Rights Act of 1964 because, inter alia, Title VII, unlike the NLRA, “depends principally upon private causes of action for enforcement”];  Montoya v. Gateway Ins. Co., 168 N.J.Super. 100, 108, 401 A.2d 1102, 1105-1106 [court's enforcement of private contract between insurer and undocumented alien would not have effect of “subsidizing” or “aiding” alien's continued illegal presence in this country] ).   The award of back pay in Hoffman, by contrast, was made by an executive-branch agency, and its primary purpose was to further federal public policy against unfair labor practices, which, in the Hoffman Court's view, conflicted with the separate federal policy on immigration (cf. Rivera v. NIBCO, Inc., supra at 1068, 1068 n. 11 [it is “unlikely” that Hoffman applies in discrimination actions under Title VII because, inter alia, the Hoffman decision focused extensively on the NLRB's “limited power to construe statutes outside of its authority,” while “[u]nder Title VII, a federal court decides whether a statutory violation warrants a backpay award,” and courts have power to interpret both Title VII and the IRCA];  Hernandez v. M/V Rajaan, 848 F.2d 498, 500, cert. denied 488 U.S. 981, 1030, 109 S.Ct. 530, 837, 102 L.Ed.2d 562, 970 [pre-Hoffman decision holding that undocumented alien plaintiff was eligible to recover lost future wages at United States rates;  “At the time of the accident, [the employer] was accepting [the plaintiff's] labors ․ without regard to the status of his citizenship.   As a private citizen, [the employer's] relationship to [the plaintiff] is not the same as the plaintiffs' relationship with their employer in Sure-Tan, in which a back-pay remedy applied by the [NLRB] was found to implicate labor policy considerations”] ).

In Hoffman, the Supreme Court viewed the award of back pay as a reward for the employee's flagrant violation of the IRCA's anti-fraud provision, concluding that such a remedy, under the circumstances of that case, would trivialize the immigration laws, condone past IRCA violations, and encourage future violations (see Hoffman Plastic Compounds v. National Labor Relations Bd., supra at 150, 151, 122 S.Ct. 1275).   An award of lost wages, however, compensates the employee for a loss of income proximately caused by the defendant's injury-producing negligence.   Although the plaintiff is not presently authorized to work in the United States, such damages are no more a reward for illegal conduct than are the 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.²  In personal injury actions commenced in the courts of this State, the recovery of damages for lost wages is normal and represents the status quo.   Thus, withholding that remedy from the plaintiff would operate as a penalty against him, based on his status as an undocumented alien.   While state courts may not award damages that would interfere with or frustrate federal immigration policy, it is not appropriate for them to augment that policy by imposing upon undocumented aliens an additional penalty not authorized by federal law (see Martinez v. Fox Valley Bus Lines, supra at 577).

Moreover, although the employer in Hoffman terminated the employee based on an improper motivation, i.e., ridding itself of union supporters, the employer unwittingly had a valid reason for taking precisely the action it took, i.e., the employee's lack of authorization to work in this country, which had been concealed from the employer by the employee's fraudulent conduct (see 8 USC § 1324a[a][2] [employer may not continue to employ alien knowing that alien is not authorized to work in United States] ).   Thus, there was no real injustice in denying the employee back pay.   Here, by contrast, the defendants had no right to withhold the safety devices required under Labor Law § 240(1), and that alleged wrongful conduct deprived the plaintiff of his capacity to earn wages.   Although the federal immigration authorities could have effected the same result (with respect to wages at United States rates) by deporting the plaintiff, the defendants had no ability or authority to do so.

 Thus, we conclude that the holding of Hoffman is not so broad as to require a ruling that a New York court's award of lost wages to an undocumented alien is preempted by the IRCA or the policy underlying it.   Furthermore, our own analysis of the preemption issue leaves us firmly convinced that requiring defendants to pay the same damages to all plaintiffs regardless of their immigration status not only does not interfere with, but actually advances, the immigration policy of the United States, as reflected in the applicable federal statutes.   In our judgment-and in the judgment of many other courts,³ including the United States Supreme Court (see Sure-Tan, Inc. v. National Labor Relations Bd., supra at 893-894, 104 S.Ct. 2803)-withholding otherwise available remedies from undocumented aliens would create an incentive for unscrupulous employers to hire them, secure in the knowledge that such employees would have no recourse in pursuing proper wages and benefits or damages for workplace injuries.   Such a result would thwart the Congressional objective of preventing American employers from hiring undocumented aliens.   By continuing to permit the recovery of lost wages by undocumented aliens, we help to ensure that such workers are no more attractive to employers than American citizens or authorized aliens, thus increasing the likelihood that employers will eschew the hiring of undocumented aliens.

The Hoffman Court noted that when an undocumented alien is working in this country, some party-either the employer or the employee-has violated the IRCA. Both the employee and the employer are answerable to the federal government for any violations of the IRCA they may have committed, but a tortfeasor is independently answerable to the employee for any violations of its statutory or common-law duties under New York law.   Allowing the defendants to avoid any aspect of damages for which they would otherwise be responsible would facilitate exploitation of alien workers, and would unjustly enrich even scrupulous defendants (see Nizamuddowlah v. Bengal Cabaret, Inc., supra at 876, 415 N.Y.S.2d 685 [“[R]ecovery must be permitted in order to prevent the unjust enrichment of the defendants.   Even illegal aliens have the right to pursue civil suits in our courts, and the practice of hiring such aliens, using their services and disclaiming any obligation to pay wages because the contracts are illegal is to be condemned”] [citation omitted];  Design Kitchen & Baths v. Lagos, 388 Md. 718, 733, 882 A.2d 817, 826, 2005 WL 2179187, *6 [denying workers' compensation coverage to undocumented aliens would allow unscrupulous employers to “take advantage of this class of persons and engage in unsafe practices with no fear of retribution”];  National Labor Relations Bd. v. Apollo Tire Co., supra at 1184 [Kennedy, J., concurring] [“If the NLRA were inapplicable to workers who are illegal aliens, we would leave helpless the very persons who most need protection from exploitative employer practices such as occurred in this case”] ).   Moreover, reducing or eliminating safeguards and remedies available to undocumented aliens would have a deleterious effect on similar protections afforded to the work force in general (see Local 512, Warehouse & Office Workers' Union v. National Labor Relations Bd., supra at 719;  Rajeh v. Steel City Corp., supra 157 Ohio App.3d at 731, 813 N.E.2d at 703;  Mendoza v. Monmouth Recycling Corp., supra 288 N.J.Super. at 247, 672 A.2d at 225;  Pontes v. New England Power Co., supra;  HR Rep. No. 99-682[I], 99th Cong., 2d Sess., at 45, 58, reprinted in 1986 U.S. Code Cong. & Admin. News at 5649, 5662 [“application of the NLRA” to undocumented aliens “ ‘helps to assure that the wages and employment conditions of lawful residents are not adversely affected by the competition of illegal alien employees who are not subject to the standard terms of employment,’ ” quoting Sure-Tan, Inc. v. National Labor Relations Bd., supra at 893, 104 S.Ct. 2803] ).

In Sanango v. 200 E. 16th St. Hous. Corp., 15 A.D.3d 36, 788 N.Y.S.2d 314, the court reasoned that depriving undocumented aliens of lost wages is justified because “[w]e are not aware of any other context 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” (id. at 43, 788 N.Y.S.2d 314).   We do not find this reasoning persuasive.   An undocumented alien performing construction work is not an outlaw engaged in illegal activity, such as bookmaking or burglary (see Murray v. Interurban St. Ry. Co., 118 App.Div. 35, 102 N.Y.S. 1026;  see also Watts v. Malatesta, 237 App.Div. 558, 261 N.Y.S. 51, affd. 262 N.Y. 80, 186 N.E. 210).   Rather, the work itself is lawful and legitimate;  it simply happens to be work for which the alien is ineligible or disqualified (see Montoya v. Gateway Ins. Co., supra 168 N.J.Super. at 106, 401 A.2d at 1105).   Remedies have been awarded to individuals in analogous positions (see Noreen v. William Vogel & Bros., 231 N.Y. 317, 132 N.E. 102 [minor employed in violation of child labor law, who obtained the job by misrepresenting his age, was entitled to workers' compensation benefits after sustaining a workplace injury];  Robinson Freight Lines, 129 NLRB 1040, 1042, 1042 n. 5, 1960 WL 15371 [truck driver awarded back pay despite lack of chauffeur's license];  Local 57, International Union of Operating Engrs., 108 NLRB 1225, 1954 WL 12984 [crane operator awarded back pay despite lack of engineer's license required under state law] ).

The Sanango court's analysis was apparently based on the following premise:  “[W]e believe that plaintiff's acceptance of unlawful employment should be deemed to constitute misconduct contravening IRCA's policies whether or not he submitted false documents” (Sanango v. 200 E. 16th St. Hous. Corp., supra at 42, 788 N.Y.S.2d 314).   There is no support for that premise in the Hoffman decision, and certainly not in the IRCA. The INA did not criminalize an alien's acceptance of employment after entering this country illegally (see Sure-Tan, Inc. v. National Labor Relations Bd., supra at 893, 104 S.Ct. 2803), and no such provision was added by the IRCA. On the contrary, the IRCA was specifically designed to hold employers responsible for preventing unauthorized employment by verifying every employee's eligibility to work in the United States.   An employer violates the IRCA by hiring an undocumented alien, but an undocumented alien does not violate the IRCA by working in this country (see Correa v. Waymouth Farms, supra at 329;  Dowling v. Slotnik, supra 244 Conn. at 813 n. 17, 712 A.2d at 412 n. 17).   Thus, there is no sound basis for attributing “misconduct” to every undocumented alien who accepts employment in this country.   While a presumption of “misconduct” on the part of every employer that hires an undocumented alien is also unjustified, the fact remains that depriving undocumented aliens of lost wages would, in effect, grant partial immunity from duties such as those imposed by Labor Law §§ 240(1) and 241(6) to employers and other defendants who benefit from the labor of those aliens, thus producing a windfall in favor of such defendants.

Other rationales for expanding the holding of Hoffman to deny lost wages to undocumented aliens are equally untenable.   In Veliz v. Rental Serv. Corp. USA, 313 F.Supp.2d 1317, the court reasoned that “[a]warding lost wages is akin to compensating an employee for work to be performed,” that “if this Court were an employer, it would be compelled to discharge [the decedent],” and that a court's award of lost wages in such a case “would be tantamount to violating the IRCA” (id. at 1336).   Such reasoning reveals a misunderstanding of the purposes underlying the IRCA. The statute 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.   Limiting or precluding the compensation of such aliens can only have the effect of encouraging employers to hire them.

 In prior decisions, this court has held that a plaintiff's immigration status is relevant to a determination of damages for lost wages and presents an issue of fact to be resolved by the jury (see Vasquez v. Sokolowski, 277 A.D.2d 370, 717 N.Y.S.2d 212;  Avendano v. Sazerac, Inc., 221 A.D.2d 395, 634 N.Y.S.2d 390;  Gomez v. Long Is. R.R., 201 A.D.2d 455, 607 N.Y.S.2d 388;  Collins v. New York City Health & Hosps. Corp., supra ).   Contrary to the defendants' contention, those cases should not be read as holding that an undocumented alien, merely by virtue of his or her lack of authorization to work in this country, may be precluded from recovering damages for lost wages.   Rather, 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 (see e.g. Hernandez v. M/V Rajaan, supra at 500 [undocumented alien entitled to damages for future lost wages at United States rates absent defense proof that he “was about to be deported or would surely be deported”] ).   Illegal conduct by the plaintiff will automatically foreclose an award of damages for lost wages only when the work itself is of an unlawful nature (see Watts v. Malatesta, supra;  Murray v. Interurban St. Ry. Co., supra ) or when the plaintiff's injury is “the direct result” of his or her commission of a “serious criminal act” (Barker v. Kallash, 63 N.Y.2d 19, 24, 479 N.Y.S.2d 201, 468 N.E.2d 39).

In this case, the record contains no evidence indicating whether or not J & C was aware that the plaintiff was an undocumented alien, whether or not J & C complied with the document examination requirements of the IRCA, or whether or not the plaintiff violated the IRCA by submitting false documents at the time he was hired.   Accordingly, this case could easily be distinguished from Hoffman on the ground that the Hoffman decision rested heavily on the fact that the employee in that case had obtained the job from which he was fired by submitting a fraudulent birth certificate indicating that he was an American citizen, thereby subverting the IRCA's enforcement mechanism.   We have concluded, however, that the Hoffman decision simply does not apply to awards of damages in personal injury actions.   Therefore, we do not limit our holding to cases in which the plaintiff can prove that he or she has not submitted a fraudulent document in violation of the IRCA or that the employer was aware of his or her immigration status (see Continental PET Tech. v. Palacias, supra 269 Ga.App. at 565, 604 S.E.2d at 631 [undocumented alien's submission of fraudulent documents to obtain employment did not vitiate her right to recover workers' compensation benefits “where the employer failed to show a causal connection between the employee's misrepresentation and the ․ injury suffered by the employee”];  but see Rosa v. Partners in Progress, 152 N.H. 6, 13, 868 A.2d 994 [undocumented alien may recover lost wages at United States rates only from “a person responsible for [the] illegal alien's employment [who] knew or should have known of [the] alien's status”] ).   An undocumented alien's submission of a false document to satisfy the IRCA's verification requirements is punishable by a fine and imprisonment for up to five years (see 18 USC § 1546[b] ), and in our view, withholding damages for lost wages does not provide a meaningful degree of additional deterrence.   Indeed, in the analogous context of child labor, a New York statute authorizes double recovery of workers' compensation benefits by underage workers, despite their complicity in an illegal employment relationship and even their fraudulent misrepresentations to their employers concerning their age (see Workers' Compensation Law § 14-a[1];  Sackolwitz v. Charles Hamburg & Co., 295 N.Y. 264, 67 N.E.2d 152).

As we have noted, withholding lost wages from undocumented aliens would create a perverse incentive for employers to hire such aliens.   Were employers, general contractors, and property owners allowed to escape liability for lost wages where they are purportedly unaware of an employee's undocumented status, an incentive would still exist for employers to remain willfully ignorant of prospective employees' immigration status and to hire undocumented aliens “with a wink and a nod” (Hoffman Plastic Compounds v. National Labor Relations Bd., supra at 156, 122 S.Ct. 1275 [Breyer, J., dissenting];  cf. Rosa v. Partners in Progress, supra at 1001 [holding general contractors to a standard of constructive knowledge concerning an undocumented alien's status, 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”] ).   Only by equalizing defendants' potential liability for injuries to authorized and unauthorized workers can the objectives underlying both federal immigration law and this State's tort law and workplace safety statutes be realized.

The defendants' and the third-party defendant's remaining contentions are without merit.

Accordingly, we reverse the order, with one bill of costs to the appellant payable by the respondents appearing separately and filing separate briefs, deny the motions, and reinstate the claim for lost wages.

ORDERED that the order is reversed, on the law, with one bill of costs payable to the appellant by the respondents appearing separately and filing separate briefs, the motions are denied, and the claim for lost wages is reinstated.

FOOTNOTES

1.   The Hoffman Court noted that the back pay award in that case compensated the employee for, inter alia, “years of work not performed” (Hoffman Plastic Compounds v. National Labor Relations Bd., supra at 149, 122 S.Ct. 1275), and some courts have found that Hoffman's applicability depends, at least to some extent, on whether the employee is seeking compensation for work already performed or for work that has not been performed (see Hernandez-Cortez v. Hernandez, 2003 WL 22519678, *6, 2003 U.S. Dist. LEXIS 19780, *17;  Flores v. Amigon, 233 F.Supp.2d 462, 463-464 [citing additional cases] ).   In our view, that distinction is meaningless for purposes of determining whether a particular remedy contravenes federal immigration policy.   Undocumented workers who immigrate to this country are motivated by the prospect of earning wages, not the prospect of being awarded back pay as a result of an illegal termination or lost wages as a result of an injury (see Dowling v. Slotnik, 244 Conn. 781, 796, 712 A.2d 396, 404, cert. denied Slotnik v. Considine, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451;  Peterson v. Neme, 222 Va. 477, 482, 281 S.E.2d 869, 872;  Patel v. Quality Inn South, 846 F.2d 700, 704;  Montoya v. Gateway Ins. Co., 168 N.J.Super. 100, 104, 401 A.2d 1102, 1104).   Thus, an employee's IRCA violation is no more “condoned” or “encouraged” by an award of back pay or lost future wages than by the routine payment of wages for work already performed.

2.   At least one court has recognized that “in the end, the right to workers' compensation is as much an incident of the employment as the right to receive salary, and has been earned once the labor has been performed” (Mendoza v. Monmouth Recycling Corp., supra 288 N.J.Super. at 248, 672 A.2d at 225).   The same reasoning arguably applies to the wages that the plaintiff would have continued to earn but for his injury.

3.   See Correa v. Waymouth Farms, supra at 331 n. 4;  Dowling v. Slotnik, supra 244 Conn. at 796, 810, 712 A.2d at 404, 410-411;  Gates v. Rivers Constr. Co., supra at 1022;  Continental PET Tech., Inc. v. Palacias, supra 269 Ga.App. at 563-564, 604 S.E.2d at 630-631;  Rajeh v. Steel City Corp., 157 Ohio App.3d 722, 731, 813 N.E.2d 697, 703;  National Labor Relations Bd. v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 55-56;  Mendoza v. Monmouth Recycling Corp., supra 288 N.J.Super. at 248, 672 A.2d at 225;  Patel v. Quality Inn South, supra at 704-705;  Local 512, Warehouse & Office Workers' Union v. National Labor Relations Bd., supra at 720;  National Labor Relations Bd. v. Apollo Tire Co., 604 F.2d 1180, 1183;  Montoya v. Gateway Ins. Co., supra 168 N.J.Super. at 104, 401 A.2d at 1104;  Pontes v. New England Power Co., 18 Mass.L.Rptr. 183;  Singh v. Jutla & C.D. & R's Oil, Inc., 214 F.Supp.2d 1056, 1062;  Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F.Supp.2d 1053, 1056.

PRUDENTI, P.J.

S. MILLER, RITTER and GOLDSTEIN, JJ., concur.