New York Supreme Court Allows Jury to Consider Undocumented Alien's Immigration Status in Valuing Tort Claim for Lost Wages
On June 12, 2009, the Supreme Court of the State of New York, Bronx County, issued a decision that allowed the plaintiff, an undocumented alien who was pursuing a tort claim, to offer evidence of probability that his asylum application would succeed so the jury could evaluate his claim for lost wages. Maliqi v. E. 89th Street Tenants, Inc., Index No. 23309/06 (Sup. Ct. Bronx Cty. June 12, 2009). Under the federal immigration laws, undocumented aliens are not allowed to work. In tort claims where lost wages are concerned, defendants often attempt to use the plaintiff’s illegal immigration status as an absolute legal bar to recovery. In most states, the courts will allow recovery for back wages on the theory that the employer should not benefit from the employee’s labors, especially if its lax application procedures allowed the employee on the organization’s payroll. The issue of how to handle claims of lost future earnings has resulted in different approaches in the various states. Most states agree that an individual’s undocumented status is not an absolute bar to recovery. This is especially the case where the employer either knew of the employee’s lack of work authorization or did not have procedures in place to properly evaluate that work authorization. E.g. Balbuena v. IDR Realty, 6 NY 3d 338 (2006). The question is how does the plaintiff prove that he is legally entitled to the lost future earnings claimed? In the Maliqi decision, the court recognized that the plaintiff’s immigration status was a relevant consideration on any lost future earnings claim. If he remained undocumented, then he had no legal right to future wages. If his asylum claim was granted, however, he might. In a novel approach, the court resolved this conflict by allowing the plaintiff to offer evidence to the jury regarding the likelihood of success for his asylum claim. In essence, the court held that the length of time during which the plaintiff might continue legally earning wages in this country and the prospect of his deportation are factual issues for the jury to determine. (From EBG's Immigration Newsletter)
The president of a Massachusetts military goods manufacturing company will pay a fine and serve up to 18 months in prison to settle charges stemming from a raid by federal immigration officials in March of 2007. The company will also have to pay a fine of $1.5 million. Under the terms of a plea agreement entered Nov. 3. MBI and its president and principal shareholder, pleaded guilty to several charges in U.S. District Court for the District of Massachusetts alleging that they hired illegal aliens, helped to shield them from detection, failed to pay them full overtime, and fraudulently misled the government. The company specialized in the manufacture of handbags and leather goods. Between 2001 and 2006, MBI won a number of Department of Defense contracts worth approximately $230 million. As a result of these defense contracts, the federal government said, MBI increased its workforce from approximately 85 employees in 2001 to approximately 650 people in 2006. 
to 2007; fraudulently misrepresenting Social Security numbers and committing mail fraud when it submitted Social Security numbers to the IRS and Social Security Administration knowing that many of the numbers had to be false given that many of the company's employees were illegal aliens; and failing to pay many employees overtime from 2005 to 2007. MBI's president pleaded guilty to helping harbor and conceal illegal aliens by allowing the company to submit false Social Security numbers for employees to the government as if they were real. .jpg)
On August 28, 2008, The Des Moines Register published a story by Tony Leys entitled "Critics tie scant new charges to wariness after Postville raid." Florida employers would be well served if they read it. I reproduce the story in full here below: 
On July 29, 2008, the owner of a Florida painting company pleaded guilty to 
one count of harboring illegal aliens in violation of the Immigration and Nationality Act (See United States v. Tinoco-Tinoco, M.D. Fla., No. 3:08-cr-00133-HLA-MCR, plea entered 7/29/08). Ruben Tinoco-Tinoco was indicted in the U.S. District Court for the Middle District of Florida in April following the arrests of 34 illegal aliens at various residences in Jacksonville (2 WIR 268, 5/5/08 ). According to the plea agreement, 29 of those aliens said they worked for Tinoco-Tinoco at Taurus Painting Inc., in Jacksonville, Fla. 
An Immigration and Customs Enforcement-led investigation revealed that from February 2007 through March 2008 numerous alleged illegal aliens were picked up at residences and driven to worksites in cars owned by Tinoco-Tinoco or his business, ICE said. Tinoco-Tinoco faces a maximum sentence of 10 years in prison and $250,000 in fines. In addition, under the terms of the plea agreement, Tinoco-Tinoco agreed to pay $50,000 and surrender two houses in forfeiture. "The recruitment, harboring and transportation of illegal aliens are very serious crimes that we will simply not tolerate," Robert Weber, special agent in charge of the ICE Office of Investigations in Tampa, said in a July 29 statement. "My office devotes significant resources to identify, prosecute and incarcerate these criminals and is determined to continue identifying and shutting down vulnerabilities to our immigration system such as harboring illegal aliens," Weber said. 