Posted on July 1, 2009 by Hector Chichoni

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)

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Posted on November 30, 2008 by Richard Tuschman

When Must Wages Be Paid in Florida?

Some states have laws that prescribe when wages are due.  For example, California law provides that wages earned between the 1st and 15th days of any calendar month must be paid no later than the 26th day of the month during which the labor was performed, and wages earned between the 16th and last day of the month must be paid by the 10th day of the following month 

Florida has no such law.  The federal Fair Labor Standards Act applies to most Florida employers, but the FLSA does not specify when wages are due.  In a recent federal case in Florida, an employee claimed that the employer violated the FLSA by paying him 10 days after the end of the pay period.  The district court disagreed and granted summary judgment to the employer.  On appeal, the Eleventh Circuit Court of Appeals affirmed the district court's ruling in an unpublished opinion.  The opinion notes that the employee cited "no cases that have held that a ten-day delay between the end of the pay period and payday is unreasonable, and has provided no evidence from which to conclude that ten days was an unreasonable delay in this case."  The case is Arroyave v. Rossi, Case No. 08-12008 (11th Cir., Oct. 17, 2008).     

So when must wages be paid in Florida?  Well, there's no definitive answer to this question, but employers should be safe in paying employees within 10 days after the end of the pay period. 

 

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