Illegal Alien's Future Wage Loss Based on Lawful Residence

Thursday, September 27, 2012 | 0

A federal district court held an undocumented alien can recover damages for future loss of earnings based only on earnings he would be able to legitimately earn in his country of lawful residence.

Isn't it time to apply such a common sense rule to Illinois' workers' compensation wage differential and permanent total claims? In Wielgus v. Ryobi Technologies, Inc., et al. (No. 08 CV 1597), plaintiff brought a products liability suit pursuant to diversity jurisdiction, including claims for negligence, breach of implied warranty and strict liability. Plaintiff sustained injuries in March 2006 when operating a table saw defendants manufactured and/or sold. Plaintiff and defendants asked the court to resolve the issue of whether an undocumented alien may recover lost future earnings and damages for loss of future earning capacity in a tort action brought under Illinois law. An issue involved whether the Immigration Reform and Control Act of 1986 ("IRCA") precluded plaintiff from recovering economic damages at United States wage levels.
 
The federal court in the case at bar noted because Illinois courts had not definitively answered this question it must attempt to predict how the Illinois Supreme Court would answer it. The court analyzed relevant case law and noted courts have split on this issue. Some concluded an undocumented alien was precluded from recovering in tort future lost United States wages:
 

• Martinez v. Freeman Claimant is not entitled to recover any potential lost United States wages "because such future wages could only have been earned in violation of the federal immigration laws" but allowing claimant to recover damages based on loss of future earnings that could have been earned lawfully, such as earnings from native country).
• Veliz v. Rental Serv. Corp. USA, Inc. An award predicated on wages that could not lawfully have been earned, and on a job obtained by utilizing fraudulent documents runs contrary to both the letter and spirit of the IRCA, whose salutary purpose it would simultaneously undermine.
• Hernandez-Cortez v. Hernandez Plaintiff's status as an illegal alien precludes his recovery for lost income based on projected earnings in the United States.
• Rosa v. Partners in Progress, Inc. An illegal alien may not recover lost United States earnings, because such earnings may be realized only if that illegal alien engages in unlawful employment.

• Madeira v. Affordable Housing Foundation, Inc. Where employer violated IRCA by arranging employment and where the jury was instructed to consider worker's removability in assessing damages, New York law did not conflict with IRCA policy in allowing recovery "for some measure of lost earnings at United States pay rates."
• Bordejo v. Exclusive Builders Inc. Pennsylvania's stance toward recovery of workers' compensation is to be persuasive regarding recovery for personal injury and predicting that the Pennsylvania Supreme Court would not preclude claims for lost earnings as a matter of law.
• Kalyta v. Versa Prods., Inc. Workers' compensation system comparable to personal injury and holding "[n]either IRCA nor New Jersey law prohibits lost wages damages for undocumented workers in the personal injury tort context."
• Tyson Foods, Inc. v. Guzman Texas law clearly allows for the recovery of damages for lost earning capacity, regardless of the claimant's citizenship or immigration status."