Paper Attached for Comments

I attach a short paper I just completed dealing with state tort remedies for undocumented aliens. There are an increasing number of cases in this field. There will be a longer sequel. Looks like a lot of courts came to illogical conclusions in these cases, especially after the Supreme Court's Hoffman decision in 2002 (which actually dealt with the NLRA). Collective descent into irrationality....

STRANGE VISIONS OF ALIENS SHADOWS

                                                    J.S. BHANDARI^*

                                                                       March 2006

ABSTRACT: This short paper examines the compensatory tort remedies that may be available to undocumented aliens (irregular migrants) under state accident law pertaining to injury or wrongful death. Data suggest that there may be a large number of such cases, at least potentially, and an increasing number of such cases have in fact, been brought recently. The paper shows that both prior to and after a controversial and possibly unrelated US Supreme Court decision, state and federal diversity courts in several jurisdictions have rendered a dismaying array of improperly-reasoned decisions. In one section of the paper, I discuss a particularly curious and sophistical decision in

Florida

. I also discuss a decision issued a few weeks ago the state’s highest court in

New York

, which very modestly and incompletely clarifies a chain of prior inconsistent decisions. Another state court of last resort may however, have encroached upon a federally-preempted area. The heart of the paper is the influence of the nation’s immigration policies (especially with respect to employer sanctions) over traditional state remedies for accidental injuries that may be experienced by the large class of potential claimants identified above. 

^* Ph.D., LL.M., J.D., Professor of Law,

Florida

Coastal

School

of

Law

,

Jacksonville

Florida

. Please do not cite without the author’s written consent.

I: INTRODUCTION: These are heady times for debate on immigration-related matters, both for specialists and for general public policy watchers. Within a few days, the US Senate is scheduled to debate a bill already passed by the House in December 2005, that would make the continued presence of undocumented aliens (referred to “irregular migrants” or “migrants irrèguliers” in the rest of the industrialized world and by international organizations) in the US a felony, along with other draconian measures, such as military deployment on the borders, construction of a Berlin Wall-type fence along a portion of the southern border etc.[1] Proposals for an amnesty for existing undocumented aliens or for temporary guest worker (“Gastarbeiter”) programs did not ultimately find their way into the House bill under consideration.[2] Such proposals were supported by the Executive and are also part of numerous other bills currently pending in Congress.[3] Apparently, the House sponsors of the bill transmitted to the Senate recalled the experience of

Germany

with Turkish “Gastarbeiter” in decades past and the words of the Swiss writer Max Frisch who wrote, “We asked for workers and we got people”.[4] 

At the same time that Washington prepared for a legislative showdown, pro-immigration activists, lobbyists and others engaged in gigantic demonstrations across the land (one of which in Los Angeles, reportedly included over half-a-million protesters), Latino walkouts (“A day without Latinos”) from work and related actions. Even the President, in a rare moment, called for “civility” in the current immigration discourse.

While there were no large demonstrations in

Florida

on the scale of

Los Angeles

,

Florida

like

California

and

New York

, is one of the destinations of choice for high proportion of undocumented aliens. There is no precise count available, but a reasoned estimate is that there may be as many as 900,000 undocumented aliens residing in

Florida

as of mid-2005.[5] This is so despite the fact that

New York

and

California

(and some other states), are markedly more generous than

Florida

with reference to availability of state-funded public benefits to undocumented aliens.[6] However, unlike New York, and despite the fact that Florida is less populous than New York in terms of both persons and automobiles (at least for now), both the motor vehicle accident rate and the total number of such accidents per year in Florida, far exceed those in New York.[7] At the same time the rate of both occupational injuries and fatalities in workplace accidents in

Florida

exceeded the national average in 2002 and 2003.[8]

The confluence of these two factors suggests that the number of motor vehicle accidents and other negligent acts at the workplace (whether on farms, construction sites or in other service industries) which may involve undocumented aliens, is likely to be significant in states such as

Florida

, although many such incidents may not find their way to court. Indeed, the number of reported cases in which unauthorized aliens have filed suit to recover compensation in negligence cases is no longer insignificant; the largest number as of yet, are still in New York, including a very recent decision by the New York Court of Appeals in February 2006.[9] Courts deciding such cases in jurisdictions as diverse as New York, Illinois, Texas, Florida, Kansas and New Hampshire have been badly fractured in their reasoning and holdings, especially in the wake of a recent controversial US Supreme Court decision (Hoffman).[10] 

II: A LONG MURKY SHADOW: Ironically, Hoffman did not deal with negligence issues or accidental injuries at all, but instead with an intentional federal labor law violation.  The Supreme Court determined in that decision, that undocumented aliens were barred from the traditional remedy of back pay in the face of a proven National Labor Relations Act (NLRA) violation committed by the employer. The Court reasoned that awarding back pay to an undocumented alien who had been unlawfully terminated under the NLRA would jeopardize the nation’s immigration policy (as articulated in the 1986 IMMIGRATION AND REFORM CONTROL ACT (IRCA)) so seriously, that federal immigration law (as the Court perceived it) must necessarily take precedence over federal labor law and thereby, cancel out the NLRA remedy.[11] In reality, the Court’s reasoning was deeply flawed, as recognized by various commentators.[12] The “wider lens” through which the Court purported to reconcile the federal labor statute with national immigration policy was, in fact, remarkably cloudy. The purpose of IRCA (made amply clear in its legislative history) was to reduce illegal immigration into the US by making it unattractive for US businesses to employ undocumented aliens (i.e., Congress chose to focus primarily on the demand for illegal migrants) by requiring employee work eligibility (the I-9 verification) and (admittedly anemic) employer sanctions for IRCA violations. The amnesty provisions accompanied enactment of IRCA (under which some 2.7 million undocumented persons) were offered legalization were also meant to be complementary to this objective. Once the former illegal migrants were “legalized”, they could emerge from the shadows and be freely employed. The principal fiscal beneficiary of the amnesty would clearly be expected to be the government, which would now collect taxes on previously unreported income. At the same time, and more to the point, the legal availability of a large pool of workers (who were mainly low-skilled) was expected to curb the appetite of US employers for additional workers of this category. Stated otherwise, IRCA on both counts – employer sanctions and its amnesty provisions – was directed at curbing the demand for low-skilled employees by US employers. On the one hand, employers would be penalized for additional hiring of undocumented workers and at the same time, the legitimate needs of employers for unskilled low-cost labor would be met by the instant availability of the pool of newly-amnestied workers.

It is no great feat in intellectual reasoning to recognize that continuing to enforce awards such as back pay, for labor law violations committed by US employers who had hired undocumented workers would be entirely complementary to the expected workings of IRCA.[13] In fact, not permitting back pay awards to a class of unlawfully terminated workers would ensure a result precisely contrary to the objectives of IRCA. For now, the effective cost to the US employer of employing undocumented workers would be reduced; US employers would be more than eager to hire such workers, precisely because they could terminate them at will or disallow them form engaging in protected collective bargaining activity. Instead of curbing the demand for undocumented workers, and thereby reducing one set of incentives for illegal immigration into the

US

, Hoffman perversely generates the very opposite incentives.[14] It is odd indeed that the Hoffman court, which reduced resolution of the possible conflict between the NLRA and IRCA to purely economic terms (i.e., the incentives produced for potential unlawful migrants to enter the US), did not cite a single study or report to support its armchair (or high chair) theorizing.[15] 

No one would seriously argue that undocumented workers migrate to the

US

, hoping that their employers commit labor law violations against them, just so that the migrants may possibly collect back pay awards after protracted federal litigation. The inescapable fact is that given the roughly ten-to-one wage differential between similar low-skilled jobs across the

US

and

Mexico

, even the prospect of working long hours at sub-minimum wages in the

US

(in possible violation minimum wage laws) might still reap a large economic gain to the would-be migrants. Whether in fact, unlawful migrants reap vast financial gains and whether or not they are paid sub-standard wages, are proper subjects for expert study, opinion and testimony. Some recent work has demonstrated that illegal status in the

US

does not mean a disastrously low wage for such migrants. The differential wage discount for unauthorized status is estimated to be in the range of 8-15 percent.[16] 

It would be even more bizarre to believe that undocumented aliens migrate to the

US

hoping to be seriously injured or killed in a motor vehicle or occupational accident, just so that they (or their survivors) may possibly collect tort awards. In the context of motor vehicle accidents moreover, concerns about employer preferences for unauthorized migrants and IRCA sanctions do not even arise. There is simply no employer involved; only the victim and the tortfeasor, both being private parties. Who then could possibly believe that IRCA or Hoffman (which purported to weigh the relative importance of IRCA and the NLRA in the context of back pay awards) could conceivably have any implications for tort compensation and deterrence under state law? Lawyers and judges can sometimes divine the truth that others cannot. And in fact, in a dozen or more cases in Florida, New York, Texas, Illinois, Kansas, New Hampshire etc. (with more no doubt on the way), courts and lawyers have gone to great lengths in debating the implications of IRCA and of Hoffman for tort recoveries under state law. In the post-Hoffman period, virtually every defendant in a negligence-related suit by an undocumented alien (whether in the context of a motor vehicle accident or an occupational injury) has raised the shield of Hoffman’s peculiar view of IRCA sanctions and their purpose. In fact, the Hoffman defense has morphed itself into a virtual idée fixe. In several instances, courts have either acquiesced in, or eagerly embraced the proffered justification for denying or sharply limiting recovery for the undocumented alien.

III: VISION ÈTRANGE IN

FLORIDA

: A recent decision by a

Florida

diversity court is both instructive and astonishing in this context.[17] In Veliz, an undocumented worker (Ignacio) was killed while working, when a telescopic handler forklift tipped over (with Ignacio riding on the lift) as it was being lowered to the ground. The representative of the estate filed suit against both the manufacturer of forklift and its lessor on theories of negligence and strict liability.[18] Both defendants moved for summary judgment on all counts, which was granted. It would have been straightforward enough for the court to grant the requested relief based on its determination that there existed no triable issues with respect to any claim of strict liability or negligence. But the Veliz court, apparently decided to add its own observations on the relevance of decedent’s undocumented status. In the final section of the opinion, the court distilled from Hoffman, the view that the undocumented alien’s claim for lost future wages was barred, as a matter of law, at the summary judgment stage.[19] Said the court, “To hold otherwise, would be tantamount to sanctioning an illegal award, trivializing the immigration laws and encouraging future violations” (emphasis supplied).[20] 

It is difficult to see how the award could be “illegal”. Courts have generally limited the illegality defense to where the work performed itself was illegal (such as bookmaking or engaging in the construction of a pipe bomb etc.) [21] Nor is there any indication that in the text or the legislative history of IRCA itself, that purports to collaterally render state damage for tort awards illegal, either expressly or by implication.[22] IRCA itself only dealt with one type of illegality that pertained to work performed by an alien unauthorized to work in the

US

. The illegality could be that of the employer (if the employer engaged in the alien “knowing” of the unauthorized work status), or of the employee (for tendering false documents) or both. [23] Moreover, the statute is complete and self-contained in its remedies as well. Specifically, IRCA violations in the part of the employee or employer or both, are punishable by appropriate authorities (which do not include the state of federal courts hearing state law claims) by means of specifically enumerated fines or criminal sanctions.[24] Collateral punishment in the sense of limiting or denying recovery for state tort claims is nowhere authorized.

Even more befuddling is the court’s stated rationale that permitting negligence recoveries to undocumented alien plaintiffs would “encourage [the] successful evasion of immigration enforcement by immigration authorities…[and] encourage future violations”.[25] Presumably, even the Veliz court could not be referring to border apprehensions by the

US

Border Patrol. Interior enforcement by ICE of IRCA consists primarily of workplace inspections (and very rarely random audits). Following the events of September 11, 2001 and the stated re-focusing of the government’s priorities to guarding critical infrastructure, workplace enforcement has virtually evaporated.[26] Even if interior enforcement existed as a mere credible deterrent, it would be a strange twist of logic to presume that the award of lost future wages to a deceased (but unauthorized) worker could somehow discourage immigration agents from inspecting the workplace. The second part of the quoted language above is even more illogical, if anything. Ignacio was dead; neither IRCA nor any earthly statute would ever discourage or encourage him to engage in unauthorized employment again in the

US

. Nor could there be any general deterrent effect upon other potential unlawful entrants into the

US

or on visa overstays. For this to be the case, one would have to assume that undocumented workers enter the US clandestinely (referred to as Entry Without Inspection or EWI) or overstay their visas, with the specific hope of  being seriously wounded or killed in an auto or workplace accident, just so that someone might possibly recover compensatory damages on their behalf. Taken to its logical extreme, this line of reasoning is alarmingly close to the suicide bomber argument, except that hardened economic calculus has replaced political or reputational gain in the case of unauthorized migrants.[27] 

Since Safeharbor had already been decided (in which a

Florida

state court had conclusively decided that undocumented workers are entitled to worker’s compensation under

Florida

’s statutory scheme), the Veliz court had believed it necessary to differentiate its holding from that of Safeharbor. It could easily have done so, if at all necessary, by observing that worker’s compensation is expressly authorized by state statute and nothing in IRCA preempts the statutory law of

Florida

. Instead the Veliz court embarked upon a novel argument. While virtually all commentators agree that worker’s compensation (similarly to no-fault auto insurance) is an alternative substitutionary remedy to common law tort actions, Veliz determined that “… awarding worker’s compensation benefits is not inconsistent with …Hoffman, awarding lost wages is. Backpay and lost wages are nearly identical…’’.[28] 

Finally, even if Veliz had not attempted to analogize back pay with tort awards and distinguish worker’s compensation award from both (which was entirely unnecessary, as nothing in IRCA had preempted state statutory schemes governing worker’s compensation), yet another Florida decision would have provided Veliz guidance. In a case decided one year prior to Hoffman, a Florida state appeals court had held that an undocumented alien injured by an automobile was in fact, a state resident for purposes of PIP benefits, under Florida’s no-fault automobile insurance scheme, regardless of legal domicile or citizenship.[29] Moreover, a retrial was ordered and no mention of alienge to the jury was to be permitted. Veliz did not mention the

Florida

precedent; instead it succumbed to the false allure of a haphazardly–reasoned decision of the high court. It was not alone. 

IV: TROUBLED WATERS ELSEWHERE: Lest one believe that Veliz is unique in its apparent per se denial of lost wages to injured undocumented worker, it should be observed that other courts have also rendered similar decisions in the post-Hoffman period (both before and after Veliz).[30] And, in at least one recent reported case, the trial judge (counsel) engaged in such egregious misconduct through extensive commentary before the jury, on stereotypes of unlawful residents, that an appeals court found it necessary to vacate the opinion and re-assign the case.[31] Passions regarding unauthorized migrants seem to run high, not just among protesters on the street, but apparently even inside the somber and dignified courtrooms of America, and at the very pinnacle of presumed unbiasedness, namely, the judge himself.

In some instances, courts have outright dismissed an injured alien’s claim for lost earnings at the summary judgment stage; others have lost earnings may be awarded to a person, but only at wage rates prevailing in the worker’s native country, resulting in a gigantic financial windfall for the tortfeasor.[32] Perhaps, this is meant as a specialized application of choice of law principles (namely, depeçage) in which different laws may apply in respect of different issues in the same case. Thus, the elements of recovery could be determined by

US

law, while computation of the compensation determined by foreign law. None of the reported cases have actually articulated their preference for compensation at native country rates in this manner. Rather, the stated rationale is simply related to the perceived implications of Hoffman.[33] 

Oddly though, even if a claim for future lost wages is required to be evaluated at native country rates (for example, at wage rates prevailing in Mexico), compensation for future pain and suffering of the same person, must have a different and universal underpinning. The appellate division in the New York case of Sananago determined that IRCA preempted a lost wages verdict of some $96,000 at US wage rates—such a claim had to be reduced to native country wage rates—but an enormous jury verdict of $2.45 million for future pain and suffering of the injured migrant worker was not required to be reduced to levels customary for such non-pecuniary harms in that country.[34] Perhaps, the judgment of an American jury with respect to pain and suffering is universal and applicable worldwide in US dollar terms; the Sanango court did not elaborate.[35] 

The quintessential issue in matters involving compensation for future losses is of course, the likelihood that the injured or deceased party would have remained in the workforce and continued to earn future income. This issue is conceptually no different than that of US workers in general, fully authorized to work in the

US

. A person injured or killed owing to the negligence of another, may in the future, have been involuntarily separated from the workforce owing to death from other causes, illness, layoffs an a myriad of other reasons. Separation from the

US

workforce owing to undocumented alien status in the

US

is merely another factor in the calculus of expected future earnings. The inescapable fact is that several million unauthorized workers do seek and obtain employment in the

US

, particularly, in sectors such as agriculture, construction and hospitality services.[36] Indeed, without access to low-cost labor, many sectors of the

US

economy might suffer seriously adverse financial consequences.[37] Even more inescapable is the reality of immigration enforcement referred to earlier. Some years after IRCA was enacted, but long before Hoffman was decided, a

New York

court insightfully noted, “The fact that a plaintiff is deportable does not mean that deportation will actually occur”.[38] Then came the damning reports of the realities of interior immigration enforcement issued by the Government Accountability Office (GAO) and the immigration service itself. [39] While the probability (more accurately, remote possibility) of deportation without re-entry remained a factual issue to be determined by the jury, some courts such as Cano threw down a gauntlet to defense lawyers. Unless the defendant tortfeasor was prepared to demonstrate something more than the mere fact that the alien plaintiff was in the

US

illegally, even the fact of the undocumented status of the plaintiff could not go to the jury.[40] In other words, compensation would necessarily have to be at prevailing US rates, irrespective of IRCA or Hoffman.[41] Meanwhile, courts in other jurisdictions had also begun to question the relevance of IRCA and Hoffman to state tort law recoveries and appeared to authorize recovery at US wage levels, and at least one court (the Supreme Court of New Hampshire) rendered a decision last year that might very well have violated the express preemption provisions of IRCA.[42] 

V: THE LATEST FORAY: Faced with an alarming and growing number of inconsistent decisions at the trial and appellate division levels, the

New York

Court of Appeals issued a thoughtful opinion (on two cases consolidated for appeal) just a few weeks ago.[43] After careful analysis, the Balbuena court properly concluded that nothing in IRCA expressly or impliedly preempted state law compensation (either under ordinary principles or under

New York

statutory law governing workplace safety, such as the “scaffold law”). Moreover, compensation remedies were found to be complementary, rather than antithetical to IRCA’s objective, which was to reduce demand for unlawful migrants by US employers. It was left for the Court of Appeals to distinguish free its holding from the possible weighty precedent of Hoffman. It did so, on the narrow ground that the employee in Hoffman had tendered false documents, but in the cases before the New York court, the employer had simply failed to examine employee eligibility altogether.[44] Thus, in Hoffman, the employee had committed an IRCA violation and the employer an NLRA violation. In the pair of cases before the Balbuena court, the employers were guilty of IRCA violations (by failing to conduct I-9 verifications) and also of

New York

law. Whether this change in the constellation of equities should have mattered is a topic to be addressed elsewhere. The preponderant point of Balbuena however, is that, at least in New York, the unlawful migrant status of a tort plaintiff (or a state statutory law plaintiff) cannot bar recovery either at the pleadings stage or in summary judgment disposition. A Veliz-type case will not arise in

New York

. Nor will

New York

courts be permitted henceforth, to categorically award compensation at native country wage rates or at

US

wage rates, without additional inquiry. Instead, just as with the ordinary contingencies of work life, such as chances of staying employed or alive, the possibility of removal from the US work force owing to unlawful immigration status, is just another factor for the fact-finder to consider.

It might have been preferable if the Court of Appeals had taken the opportunity to clarify the role of expert witnesses in this context, or of the possibility of taking judicial notice of government reports indicating the infinitesimally low likelihood of immigration enforcement in the interior (or perhaps, of indicating that such documents and reports could be admitted under applicable hearsay exceptions). For a jury to “analyze the probability of legalization” or deferring departure from the

US

through one of the many available technical procedures (such as cancellation of removal, extended voluntary departure, temporary protected status, marriage to a

US

citizen etc.) might require more expertise, than even most non-immigration specialists possess.[45] Finally and perhaps most importantly, a demonstrably important source of mischief could have been eliminated, if the court had required a bifurcated trial procedure; one in which alien status of the plaintiff may only be raised in a separate damages phase of the proceeding, but not at the earlier liability stage to avoid the ever-present risk of prejudicing the jury.

As observed earlier, issues of alienage and particularly, unlawful immigration status, have led even judges and many an attorney to shed their professional roles and let loose the damned-up, suffocated emotions of second-hand clichés and collective irrationality.[46] The strange vision of a

Florida

federal court will not appear, at least not in

New York

. In

New Hampshire

, the state Supreme Court may already have fallen into the precipice. But, there are still many jurisdictions that have yet to pronounce sentence. What remains certain is there will be many such cases to come in the near future.[47] And, so shall the legal profession have a regal grand.

---

[1] Under current law, only the initial unlawful entry into the

US

of an alien is civil and criminal violation. Continued presence in the

US

is not a further offense, except for a sub-class of aliens who have been previously removed from the

US

(under previous terminology, deported or excluded), or have been denied admission. It is also not currently unlawful for aliens to engage in unauthorized employment in the

US

, as long as they do not utilize false documents to procure such employment. Employers meanwhile are subject to civil and/or criminal penalties for knowingly employing undocumented aliens since the Immigration and Reform Control Act of 1986 (IRCA) legislation (contained at 8 USC 1324a et seq). As pointed out later, the monetary penalties imposed upon offending employers under IRCA are anemic compared with several European countries. In any case, workplace enforcement of the so-called I-9 employee verification system (mandated under IRCA) have been virtually non-existent in recent years, according to both the Immigration and Customs Enforcement bureau (ICE) and the Government Accountability Office (GAO).

[2] The House bill referred to is H.R. 4437 (Sensenbrenner-King bill) and was passed on December 16. 2005.

[3] There are no less than 90 immigration-related bills currently pending in Congress. A well-publicized bill, known as the “McKennedy” bill (named after its Senate sponsors, McCain and Kennedy), contains both amnesty and guest worker provisions.   

[4] The initial wave of foreign workers into

Germany

in the post-War period, were principally Italians recruited under a bilateral German-Italian labor agreement in 1955 to work as farm laborers. The early foreign entrants were referred to Fremdarbeiter. Gastarbeiter was a somewhat less hospitable term used to describe migrant workers from

Turkey

and other countries during the next decade.

Germany

had had considerable experience with foreign workers dating to the War period. By August 1944, the German labor force employed some 5.7 million foreign workers (not including war prisoners), which was roughly one third the civilian work force. German government officials and private industry believed that the prior experience would enable the country to easily manage a multinational work force. By contrast, neither the

US

nor

Britain

or

France

had accumulated any such experience.

[5] See Jeffery Passel, ESTIMATES OF THE SIZE AND CHARACTERISTICS OF THE UNDOCUMENTED POPULATION (

Pew

Hispanic

Center

, March 2005). Another recent report suggests that this figure (and the figures for all undocumented aliens) is an underestimate of 50 percent or more. See, Robert Justich and Betty Ng, THE UNDERGROUND LABOR FORCE IS RISING TO THE SURFACE (Bear Stearns Asset Management Report, January 2005). I need not discuss at any length, the reasons for destination choice of undocumented aliens (more commonly referred to as “irregular migrants” in other developed nations and in international organizations including the United Nations, International Labor Office and the World Bank). Needless to say, geographical settlement preferences are powerfully influenced by the established existence of social networks among migrants. Thus, one would expect increasing concentration over time, of migrants in particular locations (i.e. “agglomeration effects”) rather than a more dispersed pattern.   

[6] See Gordon Hanson, WHY DOES IMMIGRATION DIVIDE

AMERICA

? PUBLIC FINANCE AND POLITICAL OPPOSITION TO OPEN BORDERS (Institute for International Economics,

Washington

DC

2005) (detailing availability of public benefits across states).

[7] The total number of fatalities in motor vehicle accidents in 2003 in

Florida

and

New York

were 3169 and 1491 respectively (the national total being approximately 42,600. The rates of such fatalities (per 100,000 of population) were 18.62 in

Florida

and 7.77 in

New York

respectively. In that year,

Florida

had approximately 15 million registered vehicles and

New York

, close to 20 million such vehicles. Contrary to common belief, the

Florida

cities of

Jacksonville

and

Miami

were almost four times more lethal in terms of motor vehicle fatalities than

New York City

. The number of non-fatal injuries in traffic accidents nationwide in 2003 was a staggering 2.9 million. See

NATIONAL HIGHWAY

TRAFFIC SAFETY ADMINISTRATION (FATALITY ACCIDENT REPORTING SYSTEM) (

FARS

) available at http://www-fars.nhtsa.dot.gov/ 

Occupational injury and illness data are available from the

US

Department of Labor, Bureau of Labor Statistics (see http://www.bls.gov/iif/oshwc/osh/os/ostb1237.pdf ). The number of workplace injuries (not persons) nationwide was reported by the BLS as being roughly 4.4 million in 2002. However, the occupational fatality rate was much lower than that for motor vehicle accidents; the total number of occupational fatalities in 2002 was approximately 5,500 persons.

[8] Occupational injury and illness data are available from the

US

Department of Labor, Bureau of Labor Statistics (see http://www.bls.gov/iif/oshwc/osh/os/ostb1237.pdf ). The number of workplace injuries (not persons) nationwide was reported by the BLS as being roughly 4.4 million in 2002. However, the occupational fatality rate was much lower than that for motor vehicle accidents; the total number of occupational fatalities in 2002 was approximately 5,500 persons. Data for subsequent years does not yet separate occupational injury from occupational illness.

[9] The case is Balbuena v IDR Realty LLC, 2006 WL 396944 (N.Y. Feb. 21, 2006).

[10] Hoffman Plastics Compounds, Inc v NLRB, 535

US

137 (2002).

[11] A torrent of (mostly unfavorable) commentary has followed the Hoffman decision. For present purposes, it is sufficient to note that the employer in Hoffman had violated the NLRA, but not IRCA (at least a “knowing” violation of the employee verification requirement mandated by IRCA was not established). On the other hand, the employee had tendered false documents to procure employment and was in violation of IRCA. It is possible that the

Hoffman Court

would have ruled differently if the employer had committed both NLRA and IRCA violations (as for example, by knowingly accepting false documents, or else by failing to conduct the I-9 verification at all). It is impossible to speculate.

[12] A list of negative commentary on Hoffman would occupy several pages; representative commentary includes, Katherine Seitz, Enter At Your Own Risk: The Impact of Hoffman Plastic Compounds v NLRB on the Undocumented Worker, 82 N.C. L. REV 366 (2003); Orrin Baird, Undocumented Workers and the NLRA: Hoffman Plastic Compounds and Beyond, 19 LAB. LAW. 153 (2003) Martin Martinez, The Hoffman Aftermath: The Plight of the Undocumented Worker Through a “Wider Lens”, 7 U. PA L LAB. & EMP. L. 661 (2005), among dozens of others.

[13] If the

US

employer had also committed an IRCA violation (as for example, by knowingly hiring undocumented workers), the employer would be separately liable for penalties under IRCA. An “unknowing” employer (such as the one in Hoffman) would face only NRLA penalties; IRCA penalties would be visited upon the employee. It is impossible (as correctly noted by Hoffman) for an undocumented worker to obtain employment after IRCA, without one or both parties violating IRCA. In reality, enforcement of I-9 workplace verification is practically non-existent. In addition, IRCA fines are so low (as low as $275 per violation per worker), that a

US

employer would most likely prefer to pay such a fine (if it were assessed and collected) than a much larger back pay award. See 8 USC 1324 a(e)(4)(A). The “good faith” defense to document inspection for the I-9 process is so broad (in view of the ready availability of forged documents) that it is practically impossible for I-9 inspectors to prove the necessary scienter. GAO reports issued both before and after Hoffman ruefully admit to these facts.  See GAO-05-822T (Preliminary Observations On Employment Verification and Worksite Enforcement (Government Accountability Office, June 21, 2005),  Weaknesses Hinder Employment Verification and Worksite Enforcement (Government Accountability Office, GAO-05-813, Aug 2005) and  Alison Smith, Unauthorized Employment of Aliens: Basics of Employer Sanctions (CRS Report for Congress, June 29. 2005, CRS Web) “Comparativists” would be interested to know that corresponding employer fines in several European countries are vastly higher than those in the US. In

France

and

Germany

, employer sanctions went into effect much earlier than in the

US

(in 1972 in each country). As of the year 2000, the employer fine was 1000 times the minimum wage in France (along with forfeiture of goods produced by unauthorized workers) and DM, 100,000 (approximately $ 53,000) in Germany. Additional fines could be also imposed administratively in

France

and

Germany

, up to amounts as high as DM 500,000 per violation in

Germany

. See for example, Philip Martin and Mark Miller, Employer Sanctions: French, German and US Experiences (IP 36, International Labor Office,

Geneva

, 2000).  The same report also indicates that Germany spends about five times as much as the US in enforcing employer sanctions; in 1995, German labor inspectors completed some 500,000 cases involving unauthorized employment of migrants (of which more than two thirds lead to civil fines and about 50,000 to criminal sanctions). Even before the re-allocation of federal priorities to critical infrastructure following September 11, GAO data indicated that in fiscal 1999, the INS issued a paltry 417 Notices of Intent to Fine employers for IRCA violations. By fiscal 2002, there were only 53 such notices issued. It is also interesting to note that unauthorized employment in

Germany

leads to both a fine upon offending employer and the employee. There is no corresponding penalty levied upon employees in the

US

under IRCA (in the absence of document fraud). More pertinently to Hoffman and in contradistinction to it, German employers found in violation of the relevant law (the Arbeitsförderungsgesetz or “AFG”) are liable for back pay owed to unlawful migrants. In case, the alien has been deported by the Alien Police, the back pay is remitted to that individual in her native country.

[14] These points were not lost on the dissent in Hoffman.

[15] The effects upon incentives upon would-be migrants, is surely a subject requiring technical or “specialized knowledge” in the sense of Daubert and its progeny, just as much as an evaluation of the efficacy of a particular course of treatment in the medical field. But, who would lend much credence to the views of generalists without substantial volume of expert opinion however presented, in the latter case?    

[16] See Hanson, note 6 supra. The common perception of course, is that of hungry illegal aliens toiling ceaselessly in dimly-lit quarters in semi-servitude, in exchange for a pittance. The common perception might well have been corroborated in a few anecdotes, especially in the garment industry. Anecdotes do not, a general hypothesis make.   

[17] Veliz v. Rental Service Corporation, USA, Inc., 313 F. Supp. 2d 1317 (M.D. Fla., 2003)

[18] The general contractor at the worksite was not a named defendant in the case. The general contractor leased the forklift from lessor Rental Services and also leased employees (including Ignacio) from AMS Staff Leasing (apparently, a temporary labor provider). As the direct employer, the burden of determining employee work eligibility under the I-9 procedures would fall upon the staffing company. Mr. Ignacio’s estate apparently stipulated to his undocumented status. The record does not indicate that Ignacio had taken any steps to remedy his status. Apparently, he had tendered false documentation to procure work and was therefore, liable for an IRCA violation (see 8 USC 1324c). As such, the appropriate response would have been to assess the appropriate IRCA sanction (in this case, a fine) upon the estate, if solvent, rather than denying recovery to the estate or the beneficiaries under the

Florida

wrongful death statute. The estate had also received a worker’s compensation award, which was not at issue in the case. The eligibility of undocumented workers for workers compensation is expressly established by

Florida

statute (See FL STAT 440.02 (15) (a)), as noted by both pre- and post-Hoffman

Florida

courts. See Gene’s Harvesting v. Rodriguez, 421 So.2d 701 (Fla. App. 1 Dist. 1982), Cenvill Development Corp. v Candelo, 478 So.2d 1168 (Fla. App. 1 Dist. 1985) and Safeharbor Employee Services v. Cinto Velasquez,  860 So.2d 984 (

Fla.

App. 1 Dist. 2003) (which was the first

Florida

case dealing with the issue in the post-Hoffman era).

[19] Presumably, lost future wages would be the source for lost support, which is one of the elements recoverable under the

Florida

wrongful death statute (See FL STAT 768.21)

[20] Veliz at 1335.

[21] In those cases, the activity itself was malum prohibitum; in contrast the construction work performed in Veliz, was by itself, entirely lawful.

[22] The possibility of implied pre-emption of state law by IRCA has been discussed carefully in Balbuena, note 9 supra.

[23] Even as of now, an employee who is not authorized to work does not commit an IRCA violation if he/she does not tender false documents in order to secure employment.

[24] The penalty sanctions for employees are contained in 8 USC 1324c (under document fraud). Sanctions upon the employer are in 8 USV 1324b. As noted supra, I-9 enforcement is practically non-existent in the

US

. As an interesting aside, the reader may note that the one sector of the

US

economy that that is believed to employ a larger number of unauthorized workers, i.e., agriculture, is practically immune from ICE enforcement. For, in strict derogation of the constitutional doctrine under the Fourth Amendment permitting warrantless searches of “open fields” or for “special needs”, Congress instead specifically required prior issuance of search warrants for immigration inspection or enforcement in the agricultural sector in the

US

. See 8 USC 1357e. When a sector is known to employ a large percentage of illegal workers, immunizing this sector from enforcement is only consistent with “capture” of government authority by powerful special interests.

[25] Id at 1336.

[26] See the GAO Reports cited at note 13 supra as well as Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts (GAO Report GAO-05-813, August 2005). The GAO observed that difficulties of worksite enforcement (even to very limited extent that resources and agents have been allocated to this function) include (a) the bewildering number of documents that can be used in the US for I-9 verification (currently 29 different documents) (b) the easy availability of false documents that allows employers to assert a good faith defense to a “knowing” violation (c) the lack of  a tracking system for aliens from entry to expected departure (relevant to visa overstays) (d) lack of use of the electronic online pilot verification system (e) delays in approval of I-9 verification queries, that sometimes have exceeded two weeks (f) “unintended consequences” (translated as software failures) of the SAVE verification system used by USCIS (g) reported reluctance of potential employers to probe too deeply for fear of violating IRCA’s anti-discrimination provisions and host of other problems. 

[27] Studies find that even for suicide bombers, the promise of earthly “rewards” to the families of the attackers is important to the success of recruitment and training of such individuals. Apparently, even the certainty of afterlife glory needs supplementation with convertible currency. See for example, Robert Pape, DYING TO WIN (Random House 2005), Mia Bloom, DYING TO KILL (

Columbia

University

Press 2005) and Barbara Victor, ARMY OF ROSES (Rodale Books 2003) among others.

[28] Id at 1337. In the court’s view, “worker’s compensation benefits reflect numerous policy considerations on the part of

Florida

legislature” and is therefore, consistent with IRCA. Two points will be of interest to the interest to the reader here; first, IRCA was not on the mind of the Florida legislature when the worker’s compensation statute was enacted (in…) and second, back pay under the NLRA is a remedy contained in a federal statute and presumably, reflected policy considerations, considered by the national legislature. Yet, for Veliz, statutorily authorized back pay “nearly identical” to lost wages, while worker’s compensation benefits, which are also statutorily created, were very different. As a final aside, it should be noted that lost wages (support) are also a creature of statute under the wrongful death act of

Florida

.

[29] See Maltonado v Allstate Ins. Co., 789 So 2d 464 (Fl App 2 Dist. 2001). A retrial was ordered

[30] None appears to have engaged in the degree and extent of elaborate illogic to the extent of Veliz. See also note 29 infra.

[31] See Hernandez v Paicius, 109

Cal.

App.  4^th 452 (2003). Part of the trial judge’s comments were “…There’s a lot of jurors…[who] feel that anyone who comes into this fine country illegally…and then try and take advantage of our system…that we all pay money to support, pay their salaries…If those people come in illegally…by phoneying up an I.D. or social security number, lying and getting treatment here, getting education here…it’s like forfeited ab initio. It’s just without any claims, without any pity”. Id at 457-58.

[32] I leave for now, issues relating to obtaining accurate data for wage and employment rates (and other required parameters) for certain foreign countries.

[33] Cases that require recovery at native country wage rates include, Sanango v 200 East 16^th Housing Corp, 788 N.Y.S. 2d 314 (2004), Rosa v Partners in Progress Inc, 868 A.2d 994 (N.H. 2004) among others. On the other hand, cases dismissing a claim for lost future wages at US rates outright, include Hernandez-Cortez v Hernandez, 2003 WL 22519678 (D. Kan. Nov 2003) and a trial court decision in Majlinger v Cassino Contracting Corp, 766 N.Y.S.2d 332 (N.Y. Sup Ct. 2003) (which dismissed a lost wages claim “on constraint of Hoffman”).

[34] Sanango id.

[35] In the “dismal science” of economics and its cousin, law and economics, compensation for injuries or death are viewed as involuntary market transactions. Normally, valuation of goods and services are left to the voluntary exchange of a free market place. There is no free market in which a person may purchase another’s arm or life. When the organ or life in question is “taken” in a coerced transaction such as in a motor vehicle accident, a compensation award is simply the analog of a forced market transaction in which a third party (the fact finder) assigns an artificial value. Over time, with accumulated experience, jurisdictions become familiar with such quasi-market values and award far out of line with previous awards for such injuries in that jurisdiction is subject to remittitur. Insurance companies and worker compensation referees similarly have assigned values in mind for events such as the loss of an arm, hand, eye etc. To some this might seem callous; to others it is merely a time-saving and reliable evidentiary shortcut.

[36] See Passel, note 5 supra.

[37] It is hardly surprising that US employers --at both the low and high skill ends of the job spectrum—are conspicuously absent in condemning illegal immigration in the current public discourse. Very few, if any, highly-skilled migrants are undocumented, and even fewer would find it palatable to leave an adequately–paid job in their native lands to migrate illegally to the

US

. US employers, facing a growing shortage of such “knowledge workers” have had to be content with lobbying efforts to raise ceilings on certain specialized visas (such as the H1-B category).  European countries face the same dilemma, with more acute complications resulting from a declining labor force and consequent increases in dependency ratios between working and retired individuals. See for example, GLOBAL ECONOMIC PROSPECTS 2006 (World Bank,

Washington

DC

2006). The preference for unauthorized workers is not limited to traditional business employers. Many middle-class Americans rely on such labor for services such as child care, elder care, housecleaning etc. At least two candidates for high government office in the

US

were forced to withdraw their candidacies when information as to their irregular employment of aliens came to light. The individuals were Zoie Baird (for US Attorney General) and Linda Chavez (for Secretary of Labor).

[38]  Klapa v O & Y Liberty Plaza Co., 645 N.Y.S. 2d 281 (1996).

[39] See GAO Reports cited at note 13 supra and 2004 YEARBOOK OF IMMIGRATION STATISTICS (Dept of Homeland Security,

Washington

DC

2005)

[40] Cano v Mallory Management, 760 N.Y.S. 2d 816 (2003). The Cano court sternly admonished, “Defendants cannot negligently injure someone who is within this state, legally or not, and then not be responsible to that injured person for the injuries sustained” Id at 817. The burden of proof challenge laid down by the Cano court goes to the degree of financial responsibility of defendant.

[41] Other courts have engaged in similar juggling with the burden of proof.

California

courts appear to require that the plaintiff’s status be established as a preliminary question of law under the state evidence code. Defendant must meet the initial burden to show deportable status; once this met, the burden shifts to plaintiff to show what steps plaintiff has taken to correct their deportable status. If such steps have been taken, all evidence regarding alienage is precluded from the jury and compensation is to be at prevailing

US

wage rates. If on the other hand, defendant prevails, all evidence regarding plaintiff’s future earnings must be limited to plaintiff’s home country rates. Thus a bifurcated procedure is in fact, followed. See Rodriguez v Kline 186

Cal

.

App. 3d 1145 (1986) and Gilharry-Jones v De Souza 002 WL 1360016 (

Cal.

App. 2 Dist. 2002).

California

has come to refer to this allocation of burdens as “Rodriguez procedures”. However, neither Rodriguez nor any subsequent

California

court has shed any light what steps might suffice to “correct” a deportable status. One wonders if a mere visit to an immigration attorney might suffice. Gilharry-Jones was a particularly unsympathetic decision. In that case, the alien had achieved lawful permanent resident status by the time of appeal, although she was unable to produce any evidence regarding the receipt of her application for permanent residence by the time of trial. On the other hand, some

New York

courts such as Cano and Klapa appear to require that defendant be required to show more than the mere than plaintiff’s deportable status, in order to present evidence regarding alienage to the jury. Hence, a two-stage procedure appears to have been contemplated here as well; unfortunately, the Balbuena court did not specifically endorse (or even mention bifurcation). Instead, as indicated supra, it seemed to require that all evidence regarding alienage go the jury in one step, for its analysis of the probability of deportation etc. See Section V infra. 

[42] See for example, Tyson Food, Inc v Guzman, 116 SW 3d 233 (2005) (alien status has no bearing on ability to recover lost earning capacity); Romero v John’s Fruits and Vegetables, Inc, 804 NYS 2d 772 (2005); First American Bank v Western DuPage Landscaping Inc, 2005 WL 991892 (N.D. Ill.); Ordonez v Brooklyn Tabernacle, 806 NYS 2d 446 (2005) among others. In Partners in Progress (see note 32 supra), the Supreme Court of New Hampshire determined that recovery for an injured alien tort plaintiff was to be native country wage rates, unless the employer had knowingly hired an unauthorized worker (i.e., committed an IRCA violation), in which case, defendant would be required to compensate the alien at much higher US wage rate levels. In effect, the state court took it upon itself to enforce IRCA and to impose a de facto penalty upon the employer-tortfeasor for an IRCA violation. This decision may well be invalid under the express preemption provisions contained in IRCA. Under the express language of the statute, employer sanctions following enactment of IRCA, were to be solely a federal prerogative and all existing state penalty schemes were expressly displaced. See 8 USC 1324a(h)(2) stating, “The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”

Id.

A “knowing” employer in

New Hampshire

incurs a monetary sanction by being required to compensate defendant at

US

wage rates (i.e., perhaps, by a multiple of ten).

[43] Balbuena, note 9 supra.

[44] “Hoffman is dependent on these facts, including the critical point that the alien tendered false documentation …. This was a clear violation of IRCA… We see no reason equate the criminal misconduct of the employee in Hoffman to the conduct of the employees here…” (Id at 11).

[45] Balbuena at note 9

[46] See Paicius supra at note 30 supra.

[47] Recall the numbers regarding undocumented aliens and fatalities discussed in Section I. Just as this work is being completed, a

New York

trial court had occasion to follow the precedent of that state’s highest court in Balbuena. See Barahona v. Trustees of

Columbia

University

in City of

New York

, ---- N.Y.S.2d ----, 2006 WL 615990 (March 10, 2006).