The issues came up in a lawsuit filed by a Brazilian citizen, Wudson Rosa, who claimed he was injured while working at a Wal-Mart construction site when an aerial lift tipped over and fell on him in December 2000.
Rosa sued the project's general contractor, Wrenn Associates Inc., and two of its subcontractors: Eagle General Laborers, Rosa's employer; and Partners in Progress Inc., which subcontracted painting duties to Eagle.
Rosa on Dec. 26, 2001, filed a lawsuit in a New Hampshire Superior Court asking for damages, including a claim for lost earning capacity measured at U.S. wage levels. In a pre-trial motion, the three defendants argued that Rosa's citizenship status at the time of the accident precluded him -- or at least limited him -- from receiving damages for lost earning capacity.
Rosa responded with a motion arguing that evidence regarding his immigration status should not be included in the trial because it is irrelevant and "unfairly prejudicial."
The Superior Court asked the New Hampshire Supreme Court to comment on three questions related to the case:
- Can injured workers sue for damages of lost wage/earning capacity when they were not legally entitled to work in the United States at the time of their accident?
- If illegal aliens are entitled to sue for lost wage/earning capacity, should those claims be limited to earnings that they would have received in their home country?
- Can the defendants in such cases use the worker's citizenship status and the fact that he/she was not allowed to work in this country to rebut the damage claim?
Illegal Aliens Can Sue for Damages
As for the first question, the New Hampshire Supreme Court ruled that illegal aliens injured on the job indeed have the right to sue for lost wage/earning capacity damages from their employer.
The Supreme Court cited a 1996 New Jersey Superior Court ruling, Mendoza v. Monmouth Recycling Corp., that noted, "[A] well-established body of law holds that illegal aliens have rights of access to the courts and are eligible to sue therein to enforce contracts and redress civil wrongs such as negligently inflicted personal injuries."
"We see no reason to separate an illegal alien's claim for lost earning capacity from the umbrella of other claims that he may make under tort law," the New Hampshire Supreme Court explained in its opinion issued March 4.
The New Hampshire court also pointed to the New Jersey court's assertion that a worker's citizenship/immigration status has nothing to do with the effects of his injury.
Illegal Aliens Can Recover Lost U.S. Earnings, Sometimes
The three defendants argued that any damages for lost earning capacity paid to Rosa should be measured by what Rosa could have earned working legally in his country of origin and not by what he could have earned -- but for his injury -- working unlawfully in the United States.
The New Hampshire Supreme Court agreed, but it also explained that there are some circumstances in which an illegal alien's lost earning capacity can be measured by what he could have earned in the United States.
The court concluded that:
- An illegal alien injured on the job may receive lost wages/earnings at U.S. levels if that illegal alien can prove that his employer was aware or should have been aware of his illegal status but hired him -- or continued to employ him -- nonetheless.
- Although the Immigration Reform and Control Act of 1986 punishes an illegal alien who submits fraudulent documents, that illegal alien still can recover damages unless the person who hired him "reasonably relied upon those documents."
The New Hampshire court pointed to a 2002 U.S. Supreme Court decision, Hoffman Plastic Compounds Inc. v NLRB, which determined that "awarding back pay to illegal aliens" undermines U.S. immigration policy outlined in the Immigration Reform and Control Act.
However, the New Hampshire court also noted that subsequent attempts by courts to determine whether Hoffman affects an illegal alien's ability to sue for lost U.S. wages under state law "have produced inconsistent results."
The New Hampshire court wrote that the Hoffman case and subsequent related case law were "instructive" in reaching its decision.
"While an illegal alien's potential to remain in this country and continue to work here may be uncertain and difficult to prove," the New Hampshire court stated in its opinion, "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."
Employers Can Use Citizenship Status as Defense
While the court ruled that illegal aliens can sue for damages based on U.S. wage levels in some situations, it also concluded -- in its answer to the third question -- that evidence of an illegal alien's status can be used by an employer in its defense.
"Generally, an illegal alien may not recover lost United States earnings," the court wrote. "Thus, an illegal alien's status, though irrelevant to the issue of liability, is relevant on the issue of lost earnings."
After the Supreme Court issued its decision in March, the case was sent back to the New Hampshire Superior Court for the southern district of Hillsborough County.