*1 [ 845 416] NE2d 812 NYS2d Gorgonio Realty al., et Appellants, v IDR LLC et Balbuena al., Respondents Third-Party Plaintiffs. Taman Man
agement Corp., Third-Party Defendant-Respondent. Eliot Attorney York, General of the State of New Spitzer, Intervenor-Appellant. Contracting Majlinger,
Stanislaw Respondent, v Cassino Corp. (And al., al., et et Appellants, Defendants. a Third- Action.) Eliot Party as Attorney General of the Spitzer, State of York, New Intervenor-Respondent.
Argued January 11, 2006; February and submitted decided *3 COUNSEL
POINTS OF (Michael City P.C., Lichtman, York T. Trolman, & New Glaser counsel), appellants Jeffrey A. Altman and Lichtman Appellate I. The Division erred first action. above-entitled holding preempted Im law has been that state tort (Hoffman migration Act. Com Plastic Reform Control Sanango pounds, NLRB, St. 137; v 200 E. 16th v 535 US Inc. Nealy Corp., HMO, 36; US 93 NY2d Hous. 15 AD3d v Healthcare Corp., & 238; Florida Lime 209; Silkwood v Kerr-McGee US Growers, Paul, 132; Inc. New State Avocado v 373 US York Cross Plans v Travelers Ins. Blue & Blue Shield Conference of Co., Ray 151; 645; v Atlantic 435 US 514 US Richfield Toyota Corp., NIBCO, 35; Motor Rivera v Drattel Inc., Zeng Inti., Inc., F 1057; Liu Donna Karan F3d 191.) Supp holding Appellate II. The Division erred Plastic the United States Court’s decision Hoffman [2002]) compels Compounds, a find Inc. v NLRB compensated ing plaintiffs-appellants herein cannot be (Cruz wages. Export Lines, v American 67 NY2d unearned lost Sanango Corp., 1; 36; E. 15 AD3d Montero v 200 16th St. Hous. Immigration Serv., 381; 124 F3d Rivera v Naturalization 1057.) Appellate NIBCO, F3d III. erred Division determining primary plaintiff-appellant’s wages that the were “illegally” (Sanango Corp., E. v 200 16th St. Hous. earned. Compounds, 36; NLRB, AD3d Plastic 137.) (Caitlin Spitzer, Attorney City General, Eliot New J. Hal York ligan, Kupferberg Hearing Smith, Seth Richard Patricia *4 counsel), intervenor-appellant ac for the first above-entitled Immigration I. Act tion. Reform and Control does (DeJesus §§ preempt and 241. v York Labor Law 240 New Reilly, DeJesus, 643; Co. v 533 US 90 NY2d Lorillard Tobacco Liggett Freightliner Cipollone Group, Inc., 504; 525; v 505 US Morgan Corp. Myrick, 280; US Matter Guar. Trust Co. v 514 of Dept, Appeals & v Trib. N.Y. State Taxation N.Y. Tax of of of Medtronic, Vachris, 28; Inc. 44; Sasso v 66 NY2d Fin., 80 NY2d Packing Co., 519; 430 En Lohr, 470; Rath US v 518 US Jones v glish Davidowitz, 72; v Co., Elec. 496 US Hines v General 52.) Precluding earnings damages for undocumented lost US II. inter York’s critical undermine the State New workers would (Haimes safety promoting v Tel. New York for all workers. est Co., City, Neighborhood N.Y. 132; v Hous. Servs. 46 NY2d Blake Cleaning Servs., Colin 280; L.L.C. v NY3d Commercial Sys., Inc., Serv. 374; Bica, F3d De Canas v 351; Sanango Co., v Mendoza Zirkle Fruit 1163; 301 F3d v 200 E. Corp., County 16th St. 36; Hous. 15 AD3d Public Adm’r Bronx Equitable Socy. v U.S., Assur. 325; 192 AD2d Mazur v Life City Rock-McGraw, Inc., 515; 246 AD2d Collins v New York Hosps. Corp., Health & 447; 201 AD2d Matter Testa v Sor 133.) Rest., rento 10 AD2d (Francesca Malapero City Prisco, LLP, & York New E. Con nolly counsel), respondents in the first above-entitled ac wage tion. I. Plaintiffs’ unearned lost claim should be dismissed violating immigration policy as set Im forth migration interpreted by Reform and Control Act and Compounds, United States Court Plastic Hoffman (INS (535 Inc. v NLRB US 137 v National Center for Immigrants’ Rights, Inc., 183; 502 US Bantum v American Stock Exch., LLC, 7 551; AD3d Guice v Co., Charles Schwab & Nyquist 1118; Mauclet, 520 US 1; v 432 US Mathews 787.) Diaz, v 67; Bell, 426 US Fiallo v 430 US II. Under Hoff (535 [2002]) Compounds, man Plastic Inc. v NLRB US 137 right the case follows, law that an undocumented alien has no wages to recover future unearned lost in a state tort action. (Sanango Corp., v 200 E. 16th St. 36; Hous. 15 AD3d Veliz v 1317.) Corp., Supp Rental Serv. 313 F 2d III. Plastic Hoffman [2002]) Compounds, Inc. v NLRB US 137 should not be provided limited to the situation where a worker has false employment. equal documentation to obtain IV Defendants’ protection rights plaintiffs’ will if be violated claim for future (Bell wages permitted. Shopwell, unearned lost v Compounds, 715; AD2d NLRB, Plastic 535 US 36.) Sanango Corp., 137; v 200 E. 16th St. Hous. 15 AD3d (Reed Laquercia, City LLP, Smith & York New M. Podell counsel), third-party Edwin L. Smith of defendant- respondent in the first above-entitled action. I. The First Department’s upon decision should be affirmed based the doc (Sure-Tan, preemption. NLRB, trine of 883; Inc. 467 US Hoff Compounds, NLRB, man Plastic Inc. 137; Grebow v City York, New 473; Citibank, 173 Misc 2d Feldman v Lynch Reports 2d 838; Misc In re Merrill Inc. Research Litig., Supp Kavanaugh, Supp 429; Sec. 289 F 2d Schwenk v 4 F Vasquez 116; Heilbut, 643; Heilbut 297 AD2d 99 NY2d *5 Sokolowski, 370; v 277 AD2d Co., Guice v Charles Schwab & 89 Cty., 31; NY2d 25.) Nelson, Barnett Bank Marion A. N. v 517 US of Department correctly II. The First found that Hoffman
343 [2002]) Compounds, and the US 137 Inc. v NLRB Plastic apply Immigration to non-National Act Reform and Control (Flores Amigon, Supp 2d 233 F v Relations Act claims. Labor 462; Singh Supp Zeng Intl., Inc., 191; F 2d Karan 207 Liu v Donna Supp Oil, Inc., 1056; F 2d Ul 214 & C.D. & R’s v Juila v Serv., 262; 2 Matter Testa Sor All Misc 3d loa v Al’s Tree Egbuna v 705; Rest., 10 AD2d 8 NY2d rento Time-Life Chaudhry v Mobil Oil Libs., Inc., 1142; US 153 F3d 525 Reyes-Gaona Corp., v North Carolina Growers 502; 186 F3d [Commissioner Labor], Assn., 861; F3d Matter Gibei 250 784.) incorrectly Department III. The Second AD2d 284 unearned aliens can recover determined that undocumented (Public wage damages Bronx in a tort action. Adm’r lost Socy. County Equitable U.S., 325; AD2d Col 192 v Assur. Life Corp., City Hosps. 447; 201 AD2d Health & lins v New York Kallash, v Manhattan & Bronx 19; v 63 NY2d Johnson Barker Asgar-Ali Operating Auth., 198; v Hilton 71 NY2d Tr. Surface Project, Corp., 42nd St. 1026[A]; 4 Misc 3d Celi v Dev. Hotels Inc., 12th 1023[A]; Llerena v 302 W. St. Condomin 5 Misc 3d Found., ium, Hous. 1022[A]; 5 3d Madeira v Misc Affordable Majlinger Corp., Supp 1 504; v Cassino Contr. F 2d 315 202.) Plyler Doe, The court below v 457 US IV 659; Misc 3d plaintiffs it dismissed affirmed, should be to the extent (Sanango Corp., wage 15 v E. 16th St. Hous. lost claim. 200 County Equitable Assur. Adm’r Bronx v 36; AD3d Public Life Ingham, Supp Socy. U.S., 949 F 325; AD2d Schoenmetz v 192 City Supp York 362; 171 F Collins v New 152; Murff, Rizzi v Hosps. Corp., Casson, 447; v 107 Health & 201 AD2d Casson Murray People Davis, 787; v Interurban 342; AD2d v 161 AD2d Ry. App Razzaque Taxi, AD2d Co., v Krakow 238 35; Div St. 223.) Attorney Appellants’ Dachs, 161; v 85 AD2d V Dennis (Po arguments are flawed. York’s General of the State of New Razzaque Rupcic, Taxi, 238 541; AD2d v Krakow turniak v Casson, 107 Dachs, 223; AD2d Casson v 161; AD2d v Dennis Spartan People Davis, 787; Escobar v v 161 AD2d 342; AD2d Gas-Light Metropolitan Supp Serv., 895; F Leeds v Sec. Corp., Pictures 26; McConnell v Commonwealth 90 NY 36.) Corp., Sanango 15 AD3d v E. 16th St. Hous. 465; Allowing unearned lost alien to recover an undocumented VI. equal protection damages wage violates defendants’ tort (Free Og rights. process Bland, 663; v Gibbons due Shopwell, [22 US] 715; Inc., 119 AD2d den, 1; Bell v 9 Wheat Compounds, NLRB, 137; Truax 535 US Plastic Razzaque Taxi, AD2d Corrigan, Krakow 312; *6 344 Rupcic, Dachs,
161; Dennis v Poturniak v 85 223; AD2d 232 541.) AD2d VII. The Attorney General of the State of New York’s enforcement are practices with incompatible congressio (Egbuna v Time-Life nal and policy law. Libs., Inc., NIBCO, Inc., Rivera v 184; 153 F3d 822; 364 F3d Kim, United States v 567.) 193 F3d (Andrew Zajac, Douglas Hay McGaw,
Fiedelman & J. Jericho den, DeSimone, Platt, Dawn C. Rona L. Paul L. Isaacson Ross P. Masler of counsel), for Defense Association of York, New Inc. and another, amici curiae in the first above-entitled action. I. The Clause of the Supremacy United States Constitution this compels Court follow the intent of the Immigration Reform and Control Act and bar lost claims of earnings illegal (Toll Moreno, v Rice v aliens civil tort actions. 1; 458 US Corp., Ray Santa Fe Elevator v Atlantic Richfield 218; 331 US Nyquist Co., Mauclet, v Bica, 432 US De Canas v 151; 435 US 1; Compounds, NLRB, Plastic Inc. v 424 351; US 535 US Hoffman Cipollone Liggett Group, v Volt Informa 137; 505 504; Sciences, tion Inc. v Board Trustees Junior of of Leland Stanford Sanango Corp., Univ., v 200 E. 16th St. Hous. 468; 489 US 15 36.) II. AD3d Public policy should prohibit award of lost (Dietrick Kemper [American v Ins. Co. earnings illegal aliens. Co.], Motorists Ins. Matter v 248; 76 NY2d of Marhoffer Marhof Symington Corp., fer, Matter v Wilkosz 543; Gould 220 NY of Rest., Matter Testa v Sorrento AD2d 739; NY2d of Sanango Corp., v 200 E. 16th St. Hous. AD2d 705; NY2d City York, Matter v Atkinson New 36; 15 AD3d 96 NY2d of of Giant, Inc., Boles v Dormer Matter v Cruz 809; 235; Corp., New Millennium Constr. & Restoration 19; 17 AD3d York, Continental Ins. Co. v State New 196.) 99 NY2d (Steven Ahmuty, Spratt, Shaub, LLP, Citrin & J. Lake Success Ahmuty, Timothy Capowski Christopher Jr., R. Simone Popeo, Samp counsel), Daniel J. D.C., Richard Washington, Joyce Sherman for Washington Legal another, Foundation and amici curiae in the first above-entitled action. I. Plaintiffs’ argu ments supporting of unearned recovery wages by aliens illegal are founded on faulty illusory premises absent here and most all personal injury cases to which this rule would (People Corp. Hobson, v North Star Reins. apply. 479; 39 NY2d Wong Co., Continental Ins. Kwoksze v New York 281; 82 NY2d Inchaustegui Times v 666 5th Ave. Ltd. 544; 297 AD2d Partnership, Compounds, Plastic 111; 96 NY2d NLRB, 137.) II. Plaintiffs’ rule proposed permitting any unwork entirely aliens recovery wages by unearned York tort law. Such within the of New State parameters able while of evidence creat rule undermines settled rules inherently violations, unavoidably compromises ing equal protection (Public policy. court and violates integrity system, public U.S., 192 Socy. County Adm’r Bronx Assur. Equitable Life 325; City Hosps. Corp., AD2d Collins v New York Health Hobson, 447; 479; Ryder AD2d McLaurin v 39 NY2d People Rental, AD2d v Harrison Radiator Div. 671; Truck Schultz *7 Inc., Ethicon, 6 311; 90 NY2d Swedowski v Gen. Motors Corp., Freeman, Tai 268; v 298 NY Schermerhorn v 1198; AD3d Stone man, v 185; 14 NY Carr v 2 Reiner Am. 93; NY2d North Hoy, 250.) Alliance, 259 NY Newspaper
Amy Sugimori, City, New York and Catherine Ruckelshaus Project another, amici curiae Employment National Law has Immigration impact the first above-entitled action. status no injured job. on the remedies available to a on the worker who NLRB, 137; 535 US Veliz v (Hoffman Compounds, Plastic 1317.) USA, Inc., F Rental Serv. 313 Corp. Supp (Anne Klein, Suozzi, P.C., York Meyer, English City & New others, counsel), Marie of for James Atleson and O’Donovan I. The of history amici in the first action. curiae above-entitled §§ Labor Law 240 and 241 demonstrates their critical role all New York’s scheme construction protect safety workers, (Caddy status. v Interbor regardless immigration Co., 415; R.T. 195 NY Blake v Hous. Servs. ough Neighborhood 1 v City, 280; Chemung N.Y. Zimmer County NY3d Perform Arts, Co., 513; v New Tel. 46 NY2d ing 65 NY2d Haimes York 290; 44 Fer 132; Allen v Cloutier Stewart v Corp., Constr. NY2d 313; 553; v Patrick 298 NY guson, Koenig Corp., NY Constr. S.S. 332; Maloney v & v Cunard Waverly Ogden, 7 NY2d Major Co., Co., Ltd., 278; v Commercial Outfitting 217 NY Lowenhar 211.) large immigrant II. In of New York’s App light Div Legislature’s deep late and the century 19th population distinctions, the failure immigration status familiarity with §§ 240 to Labor Law predecessors exclude immigrants v (Fong Ting 241 is Yue purposeful. best understood York, 92 States, New 698; Mayor 149 US Henderson v United 259; Compagnie the State New York v Generate People of 59.) III. York workplace Other New Transatlantique, commitment legislative laws of the era reveal safety powerful v (Caddy status. regard coverage without Daniels, Co., v 415; Montgomery R.T. 195 NY Interborough Spaduccino Hayes App 41; Co., v John G. & 37; Div Sliosberg [Ltd.], v Bush 393; Co. 182 NY v New York Alfson Life 482.) Statutory protections injured Co., Ins. 244 NY IV work long (Solarz applied legally ers have been to individuals not authorized Ry. to work. Co., v Manhattan 8 Misc Misc Karpeles Riggi 645; Heine, 155 NY v 74; 227 NY Vincent v & Vogel Sons, 406; Bros., 30 NY2d Noreen v 317; NY Feld Murray, man v 568; Palazzolo, NY Catalanotto v 46 Misc 2d 381.) (Michael City Chishti, New York J. Wishnie of Muzaffar (Joel counsel), Ange Chance LLP M. Cohen and Clifford counsel) lique Shingler M. for Associated Corset and Bras siere Manufacturers, Inc. and others, amici curiae the first legal analysis above-entitled action. I. The of the Solicitor Gen competition eral of the State of York New is correct. II. Fair requires application regulatory the uniform standards. (United Municipal Auth., States 259; NIBCO, 150 F3d Rivera 1057; 364 F3d Indus., Inc., Williams v Mohawk 411 F3d 1163.) 1252; Mendoza v Zirkle Fruit 301 F3d III. Fair com petition Congressional goal Immigration is a of the Reform and (Patel Quality Control S., Act. Inn 846 F2d 700; National *8 Buyers Group, Labor Relations Bd. v Inc., A.P.R.A.Fuel Oil 134 50; F3d Local Warehouse & Workers’ Union v National Off. Vigor Bd., Labor Relations 705; 795 F2d Contreras v Corinthian 1053.) Brokerage, Supp Inc., Ins. 25 F 2d Miguel Albany/Capital Chapter Ortiz, Selkirk, G. for District of the Labor Council for Latin American Advancement, amicus curiae in the first above-entitled action. Plastic Hoffman [2002]) Compounds, require Inc. v NLRB US 137 does injured that an undocumented worker in violation of the Labor earnings wages may Law be denied all lost he have earned injury merely the United States but for his im because of his migration (Cipollone Liggett Group, status. v 504; 505 US Immigration Bica, De Canas v 424 351; US Montero v & Serv., Naturalization 124 381; F3d Florida Lime & Avocado Growers, Paul, Inc. v 132; Sure-Tan, 373 NLRB, US Inc. v 467 883.) US (Brian
O’Dwyer City O’Dwyer Bernstien, LLP, & York New of counsel), Immigration for Emerald Center, Isle another, penalties amici curiae in the first above-entitled action. The protect owners under New York’s Labor Law all workers (Blake performing protected activity. Neighborhood v Hous.
347 City, Boorstein, 4 NY2d v N.Y. Connors Servs. of 280; 1 NY3d Koenig Corp., v Pat Allen v Constr. 290; Cloutier 44 NY2d 172; Wright Corp., Assoc., 14 v Belt rick Constr. 313; NY2d 298 NY York, 976; Zimmer v 129; Curtis State New v 23 NY2d Chemung County Performing Arts, Adm’r Public 513; 65 NY2d Corp., County Trump 258; Bronx v Vil. Constr. 177 AD2d Co., v Madeira v Edison 509; Rocovich Consolidated 78 NY2d Found., Inc., 504.) Hous. F 2d 315 Supp Affordable (Reed Laquercia, LLP, M. Podell & Smith City New York L. Smith Edwin counsel), Contracting Corp. for Cassino in the above-entitled action. Federal another, second appellants alien, an undocumented law precludes plaintiff, (Hoffman wages damages. unearned lost recovering Compounds, NLRB, Inc. Public Adm’r Plastic v 137; 535 Equitable Socy. County U.S., Assur. Bronx v AD2d Life Klapa Liberty Y Collins v O & Plaza 325; 911; Misc 2d Corp., City Hosps. Cano v New York Health & 447; AD2d Long Mallory Mgt., R.R., Is. Gomez 666; 195 Misc Vasquez Bell, Sokolowski, Fiallo v 455; 370; AD2d 277 AD2d Diaz, Im Mathews v Aliens Better 787; 67; 430 US 426 US migration States, 182.) v United Laws F Supp (Scott Horn, P.C., Mischel & T. Horn York City New McNamara, DeCicco & Gibbons P.C. counsel), for Jack others, Thaon and in the ac appellants second above-entitled denied defendants’ ap tion. Division Appellate erroneously summary dismissing lost plications judgment plaintiff’s (Sanango Corp., AD3d v 200 E. 16th St. Hous. wages claims. Realty LLC, Plastic IDR Balbuena v 36; 285; AD3d Compounds, Kallash, NLRB, 137; Barker v 19.) (Beth Goldmacher, & J. Goldmacher Faden Westbury (Henry Schwartz, J. and Jacobson counsel), Centre Rockville *9 Cernitz D counsel), appellant for & Sons Construction Corp., is not action. An alien in the second above-entitled action. in a injury a lost claim pursue earnings personal entitled (Ho Compounds, NLRB, 535 US 137.) Plastic Inc. v ffman (Brian Cicco, J.
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Plaintiffs, who are not United States citizens or lawfully admitted aliens, resident allege that were they injured while on working construction sites and have commenced personal injury litigation predicated on defendants’ purported violations of the state Labor Law. The issue before us is whether plaintiffs’ status as aliens who are not authorized legally to work United States their precludes recovery of lost earnings.
Facts Realty Balbuena v IDR LLC et al.
Gorgonio Balbuena is a native of Mexico who entered the United States without the permission of federal authorities. he April was as a employed construction *10 Management Corp. by third-party on Taman defendant worker managed Realty by and IDR LLC and defendants a site owned ramp According Balbuena, fell from a to he while Dora Wechler. sustaining pushing trauma and wheelbarrow, severe head incapacitated debilitating injuries have rendered him other to work. unable common-law wife defendants1 for Balbuena his sued (1) § (6), § negligence and 241 of Labor Law violations including past wages seeking categories damages, various loss accident until a and the future from the time verdict (collectively wages). During earnings lost referred to as discovery, sought demon- Taman documentation Balbuena necessary strating that he had obtained the authorization required by federal After Bal- work in the United States as law. objected request produce buena to this and failed to such resolving documentation, Taman court order moved sought immigration and authorization issues. Taman also work summary partial judgment dismissing Balbuena’s claim for lost wages, relying Supreme on the United States Court’s decision (535 Compounds, Inc. v NLRB US 137 Plastic Hoffman [2002]), provided that an undocumented alien who which held papers in could fraudulent work violation of federal law not be pay performed awarded for work not a result of an back as argued employer’s practice. tort unfair labor Taman that state preempted and, law, law is as construed in Hoffman wages hence, an award of lost would undermine Balbuena immigration policies. opposition motion, Bal- national possess buena admitted he work authorization did argued distinguishable from documents but was Hoffman legal recovery his claims and did for state Labor Law not bar violations. partial motion for sum- Court denied defendants’
mary judgment, concluding that state law allows an undocu- wages did not mented alien to recover and that lost Appellate apply brought under law. to tort actions state granting Department, mo- Taman’s First modified Division, summary dismissing judgment partial Balbuena’s claim tion for damages wages sought earnings on it based the extent lost Taman, Realty and originally IDR Wechler complaint 1. The named determined that Taman Compensation Board After the Workers’ defendants. Realty withdrawn, against it and IDR employer, the claim was was Balbuena’s against on contractual third-party Taman based initiated a action Wechler indemnity. plaintiff might Relying have earned in the United States. on its Sanango Corp. decision in E. v 200 16th St. Hous. AD3d 36 *11 2004]), [1st Dept the Court determined that an alien who has by precluded not obtained work authorization is from claiming wages lost derived from income earned in United may wages States, but seek based on income that could be country. dissenting earned in the alien’s home A Justice voiced contrary finding immigration view, a that federal law did not prohibit past wage Ap- and future under claims state law. The pellate subsequently permitted Attorney Division General reargument granted to intervene in the case, denied and leave appeal to to this Court.
Majlinger Corp. v Cassino Contr. Majlinger Stanislaw to came the United States in November country visa, from Poland on a travel but remained in this expired. January employed to work after his visa In 2001, he was by Improvement, as a construction worker J & C Home a building being project developed by subcontractor on a the vari- capacity property ous defendants this case their owners, agents. Gorgonio Majlinger Balbuena, contractors their Like immigration never received authorization from federal authori- ties to work the United States.
Majlinger alleges installing siding he was on exterior building standing approximately of a while on a scaffold 15 feet ground suddenly collapsed, causing off the when the scaffold injuries. physical Majlinger him to sustain serious initiated a claiming lawsuit, defendants were liable under Labor Law (1) (6). §§ § Among damages, Majlinger and 241 other sought earnings purported inability a lost as result of his to response discovery requests work. to defendants Cassino Contracting Properties Corp. Majlinger and Veteran acquired necessary conceded he had not authori- work together zation Veteran, documentation. Cassino and with other third-party partial defendant, and a defendants moved for sum- mary dismissing wages judgment Majlinger’s claim for lost based pursuant on his status as an undocumented alien to Hoffman, immigration preemption principles. federal and law partial judgment granted summary Court to wages Majlinger’s “[o]n claim defendants dismissed for lost (1 [2003].) grant constraint oí Misc 3d After Hoffman.” ing Attorney permission Appellate intervene, General Department, Division, Second reversed reinstated the dam Depart wages. Disagreeing ages the First with claim lost [2004]) AD3d 285 decisions Balbuena ment’s Sanango, Department tort law concluded that state the Second immigration preempted law because neither federal is prohibit alien an undocumented nor statutes Hoffman wages Ap injury personal recovering in a action. lost from granted appeal pellate this Court. Division leave broadly, appeals, is stated whether The central issue these injured at work site as result an undocumented alien recovering precluded lost Labor Law violations state wages immigration contend Defendants2 here due status. wages past to an undocumented that an award of and future expressly law alien conflicts with federal worker sought objectives Congress implicitly undermines *12 immigration adopted it the nation’s current to achieve when history analysis begins policies. and of rele- with the text Our impact immigration proceeds to of the statutes, the vant federal Supreme and Court’s decision Hoffman, United States principles Suprem- preemption from the derived concludes with Legislature objectives acy policy and of the York Clause the New underlying the relevant sections of state Labor Law. Nationality Immigration Act
The Federal and power regulate Constitution, the United the Under States (see government immigration exclusively the rests with federal § 351, 354 Const, Bica, art De Canas v 424 US I, [4]; US 410, 419 Comm’n, 334 US [1976]; Takahashi Fish Game [1948]). authority, Congress enacted Pursuant to this (see (INA) Immigration Nationality L 414, and Act Pub the seq.) § et as amended, US Stat as codified at USC 1101 “comprehensive statutory regulation of im- scheme for (De migration at Bica, and naturalization” Canas 353). purpose terms and of INA to delineate “the the was country subsequent the treat- of to the conditions admission 359). (id. lawfully country” con- at This ment aliens in the of only “peripheral gressional expressed concern” act, however, (id. 360); illegal regarding employment at the INA the of aliens employer alien who for to hire an did make it “unlawful an appropriate working present States without or in the United collectively “defendants” refers purposes opinion, 2. of this the term For us, the remain- as in both cases before well to all the named defendants injured, “plaintiffs” to the undocu- ing refers third-party litigants. The term mented aliens. accept employment
authorization” entering “an alien to after (Sure-Tan, country illegally” this NLRB, 467 US Supreme a result, As the United. States Court authority Congress regulate ruled that the exclusive im- migration prevent enacting did not the states from labor laws (see employment illegal that forbid the aliens De Canas v 365). Bica, 424 US at employ illegal
Because the did not it a INA make crime to employed lacking alien or be Supreme as an authorization, alien work the subsequently provisions Court held that of the (NLRA), purpose National Labor Relations Act of which is protect employees provide against illegal remedies ac- by employers, applied employment practices tions could be (see Sure-Tan, affect aliens Inc. NLRB, 892). Rejecting argument application of the NLRA purposes would conflict INA, with Court concluded that enforcement the federal labor relations “compatible” statutes was with law: primary purpose restricting immigration “A tois jobs preserve immigrant workers; American country aliens are therefore admitted to in this work only they adversely wages if ‘will not affect working conditions the workers the United similarly employed.’ Application States . .. of the helps wages employ- NLRA to assure that the adversely ment *13 conditions lawful residents are not by competition illegal employ- affected the alien subject who ees are not to the standard terms employment. employer an If realizes there will advantage preferring no be under the NLRA ille- legal gal any aliens to resident workers, incentive illegal correspondingly hire such aliens is lessened. turn, if the demand undocumented aliens may declines, there be then fewer incentives aliens themselves to enter in violation the federal immigration laws. The the Board’s enforcement of NLRA as to undocumented aliens is therefore clearly purposes reconcilable with and serves the 893-894).3 (id. immigration the laws” at regard 3. With to the remedies available to the National Labor Relations (NLRB), Board the Court determined that the Board could not award issue, pay back or reinstate the workers at who had left the States and United of 1986 Control Act Immigration Reform and The Federal the United States INA, of the objectives the policy Despite United entering of aliens the waves increasing faced steadily update efforts to After many years bipartisan illegally. States the Im laws, Congress adopted federal immigration (IRCA) (see 99-603, L Act Pub and Control migration Reform § 1324a et 8 USC amended, codified at 100 US Stat the view that expressed President Both and the seq.). Congress door, curtailing closing means of the back “[t]he principal sanctions” through employer [wa]s illegal immigration, future (HR at I, Sess, 46, reprinted 99-682, Cong, 99th No. Rep part 5650) News, at that were & Admin Cong Code by immigration the incentive for illegal intended to “remove into which draw aliens” eliminating job the opportunities (Pub 99-603, L President Ronald Rea country Statement Presidential Wkly Compilation gan Upon Signing S 10, 1986], Cong in 1986 US Code [Nov. reprinted Docs 5856-1). News, goal, important Admin To attain this the most a the IRCA scheme the creation of new was component to deter system” designed verification “[e]mployment United lawfully present of aliens who are not in the employment authorized lawfully are but not present, States those who (see [b]). § 1324a work 8 USC Under aliens system, legally present approved this documentation work in the United States are issued formal (see authorities their status eligibility [B], [C]), “green in the form of usually § [b] [1] USC 1324a issued by number or some other document card,” registration (see Services INS Citizenship Immigration Bureau of 183, 195- Inc., 502 US Immigrants’ Rights, National Center for [a]). an [1991]; hiring alien, Before 8 CFR 274a. 12 identity worker’s prospective employer required verify by examining government-issued work eligibility documentation If is not required presented, documentation. (see An § [a] hired 8 USC 1324a the alien cannot be verification knowingly employment who violates employer *14 (see Sure-Tan, NLRB, 467 country were not authorized reenter 903-904). US at 51-56, Sess, 45, 99-682, I, Cong, 2d at Rep part 4. HR No. 99th See 5655-5660; News, also Cong at see reprinted Admin in 1986 US Code 99-603, Reagan Upon Signing S Pub L President Ronald Statement (Nov. 10, 1986), reprinted in Wkly Docs 1534 Compilation Presidential News, 5856-1, 5856-4. Cong Code & Admin at requirements, unknowingly or who an hires alien but subsequently learns that an alien is not authorized to work and immediately employment relationship, does not terminate (see subject prosecution penalties to civil or criminal 8 USC [1]). § [a] [f] [1], [2]; 1324a provisions relating responsibilities In addition to the to the employers, IRCA also declares that it crime an is a for alien to provide potential employer falsely with documents acknowl- edging receipt governmental approval eligibility of the alien’s (see [a]). employment § for 8 USC 1324c INA, Similar to the penalize attaining employ- however, IRCA does alien for having proper ment without work authorization, unless the engages presenting alien fraud, such as false documentation employment. preserve to secure the In order to the national uniformity system imposed of this verification sanctions Congress expressly provided for violations, that IRCA would any “preempt imposing State local law civil or criminal sanc- (other laws) through licensing upon tions than and similar those employ, employment, who or recruit or refer for a fee for unau- (8 [2]). § [h] thorized aliens” USC 1324a Impact
The of Hoffman against statutory backdrop It was this United Supreme Compounds, States Court decided Plastic Inc. v NLRB US 137 The issue was whether an il- legal gained employment by who, alien IRCA, violation of presenting false work authorization documents could be pay impermis- awarded back after NLRB the worker was sibly engaging union-organizing terminated activities. prohib- Court concluded that such an award was purpose ited it because would conflict with the of IRCA. The “[u]nder regime, impossible Court observed that the IRCA it is employment for an alien undocumented obtain United party directly contravening explicit States without some con- gressional policies. Either the undocumented alien tenders knowingly employer fraudulent identification ... or the hires the undocumented alien in direct contradiction of its IRCA (id. 148). obligations” at emphasized
The Court that the salient factor in the case was “Congress expressly criminally punishable has made it employment an alien to obtain with false documents” (id. 149). had, fact, the alien committed this crime Thus, “awarding backpay the Court determined that in a case like *15 laws, it the also condones only immigration not trivializes this alien would future violations” because the encourages and the by an inside “only remaining NLRB award qualify .. . “mitigate damages and could not United States illegally” violations, either by tendering IRCA triggering without new willing to by employers to or employers finding false documents 150-151). (id. hire illegal IRCA and workers” ignore in the The underlie the controversies implications The of defendants’ before this Court. main thrust appeals two an IRCA, by Hoffman, precludes is that as construed arguments a state recovering wages undocumented alien lost defendants, an award injury According action. such personal preempted by that is penalty upon employer expressly (h) (2). also assert IRCA, § 8 USC 1324a Defendants specifically of “field an award of preemption” prohibits that the doctrine government or future because the federal has past earnings has regulate Congress exclusive authority immigration exercised that schemes power by enacting comprehensive Finally, INA and IRCA. defendants claim that established is in wages an undocumented alien to recover lost permitting objectives IRCA in that it contravention of purposes and encour- laws past transgressions condones future violations. ages intervenor, argue
Joined General as by Attorney plaintiffs that an undocumented alien should be allowed to recover failure to adhere lost as a result defendants’ earning capacity in the state to the established workplace safety requirements rationale for their conclusion Labor Law. The primary wages precluding state law is that lost IRCA does preempt it attractive to hire financially claim would make more act, of the federal aliens, undercutting goal the central thereby incentive with state comply less provide would of Labor Law contrary purposes labor requirements, (1) (6). Gen- Attorney § 241 Plaintiffs and §§ and field express preemp- the doctrines of eral also contend IRCA nor its neither the text of inapplicable tion are because intended to affect Congress history indicates legislative states. by the workplace protections provided we efficacy parties’ arguments, of the to evaluate the order derived of federal preemption examine principles first must States Constitution. from the United Supremacy Preemption
The Principles Clause and Clause, Supremacy Constitution, article VI of the “may entail state law either pre-emption express provision, by implication, a conflict between and state law” (New York State Blue Cross Blue Shield Plans v Conference of Travelers Ins. It is “never as *16 sumed that lightly Congress regulation, has state but derogated [courts] instead have addressed claims pre-emption with the starting presumption that Congress does intend to supplant (id.; Nealy HMO, see v US Healthcare state law” 209, 93 NY2d [1999]). 217 The presumption against is preemption especially with strong regard to laws that affect police the states’ historic (see powers over occupational De Canas safety health and issues “ 356-357) Bica, v 424 atUS and is overcome if it ‘was the only ” clear and manifest purpose Congress’ state law supplant (New York State Blue & Cross Shield Plans v Blue Conference of Travelers Ins. 655, quoting Rice v Santa Fe Eleva 514 US at [1947]). tor Corp., 218, 331 US 230
Several distinct have preemption doctrines evolved under the Clause. Supremacy “Express preemption” where applies Congress explicitly declares that a federal is law intended to (see e.g. Marine, v Sprietsma Mercury supersede state law 537 [2002]). 51, US 62-63 “Implied takes two forms. preemption” first, referred to as “field occurs “if federal preemption,” law so a thoroughly field ‘as make occupies legislative reason able inference that left room Congress no States to ”it’ Liggett v (Cipollone Group, supplement 504, Fidelity Fed. Sav. Loan De [1992], 516 Assn. v la quoting Cuesta, 458 US 141, 153 [1982] [internal quotation marks omit ted]). The second type, “conflict that preemption,” establishes
“a state statute void to the extent that it actually conflicts with a valid federal statute. A conflict will be found where compliance with both federal and state is a regulations physical ... impossibility where the state law as an stands obstacle to the ac of the complishment execution full purposes Atlantic Rich (Ray objectives Congress” field Co., 435 US 151, [1978] [citations see also Silk quotation omitted]; internal marks wood v Kerr-McGee 238, Corp., [1984]; US Growers, Paul, Florida Lime & Inc. Avocado Guice Charles Schwab & [1963]; US 142-143 US 1118 cert denied 520 [1996], Co., 89 NY2d [1997]).
Express Preemption contention, IRCA does not contain to defendants’ Contrary preempt it intended to express Congress statement scope recovery permissible state laws regarding As rele on state labor laws. actions personal injury predicated only state cases, Congress expressly preempted vant to these on or criminal sanctions” “civil impose and local laws [2]). (8 § A [h] 1324a of undocumented aliens USC employers mea or coercive “penalty sanction is considered generally (Black’s ed]), a punish such as Dictionary [8th Law sure” or regula fine for a statutory a criminal act or civil ment for (h) (2) 1324a of section language violation. The tory plain undocu hiring fines for impose directed at laws appears at issue in De aliens, mented such as the California statute history The legislative Canas v Bica *17 language as the interpretation, preemption IRCA confirms this (2) (h) only to to civil fines apply in section 1324a was intended (see or local law and criminal sanctions state HR imposed by 58, in 99-682, I, Sess, at part Cong, reprinted No. 99th Rep 5662). contrast, at News, & Admin Cong 1986 US Code a action recovery injury of civil primary personal purpose is not to premised provisions punish on state Labor Law injuries but to the worker for compensate proximately tortfeasor safety of stan statutory or the violation by negligence caused dards. Preemption
Field preemp are defendants’ field similarly unpersuaded We throughly related statutes tion IRCA and argument. Certainly is nothing of laws. But there immigration occupy spectrum meant to affect indicating Congress in those provisions types or the safety, health and state regulation occupational from a arising civil action may be recovered damages of IRCA history contrary, legislative To the those laws. “to or diminish intended undermine shows that the Act was not (id.). law” existing any way labor protections Preemption Conflict to wages for lost award The more difficult issue whether of a responsible as a result injured immigrant an undocumented party’s violation of the Labor would Law conflict with or objectives otherwise erode the IRCA in manner sufficient to strong presumption against preemption. surmount the ognize rec-We questions regarding the reach of have generated spirited variety judicial debate and a and aca- opinions.5 demic recognized notwithstanding Court that, has government’s immigration
the federal exclusive control over possess authority naturalization, the “States broad under police powers regulate employment relationship their protect power State,” workers within the which includes the (Be affecting occupational safety” enact “laws health and Canas 356)—issues “primarily, Bica, 424 US at that have been historically, (Hillsborough County a matter of local concern” [1985]). Laboratories, Automated Medical 707, In the context, Labor Law we have noted that legislative history particu-
“the
the Labor Law,
larly
Legisla-
241,
sections 240 and
clear
makes
purpose
protecting
ture’s intent
achieve
by placing
responsibility
safety
workers
‘ultimate
practices
building
jobs
at
where
construction
such
responsibility actually belongs, on the owner and
general
Legis
407),
contractor’
NY
Ann,
scarcely
posi-
of workers,
instead
on
who ‘are
in a
” (Zimmer
protect
tion to
themselves
accident’
Chemung County Performing
Arts,
65 Koenig
quoting
Corp.,
[1985],
v Patrick Constr.
NY
applies
qualifying
Law, therefore,
The Labor
employment situations—regardless
to all workers
status—and
*18
e.g.
Inc.,
6,
(2005);
See
Progress
5.
Rosa v Partners in
152 NH
359
negates
nothing
in the relevant statutes or our decisions
(see generally
principle
applicability
Abbatiello
of this
universal
[2004]).6
46,
Assoc.,
v
50-51
Lancaster Studio
injured
limiting
wages
Additionally,
claim an
a lost
employer’s
alien would lessen an
incentive
undocumented
supply
comply
Law and
all of its workers
with the Labor
Legislature
(cf.
workplace
demands
Continental
safe
App
Tech.,
Paladas,
561, 562-563, 604 SE2d
PET
269 Ga
regulations
immigration
[2004] [IRCA
not
“do
627, 630
may
protections
purport
into
area of
a State
to intrude
what
aliens”],
—,
afford these
cert denied 546 US
126 S Ct
history
legislative
clear
Given the
statement in IRCA’s
the Act
not intended “to undermine
diminish
was
(HR
existing
Rep
any way
protections
99-682,
law”
labor
No.
part
Cong,
reprinted
I,
Sess,
58,
2d
at
in 1986 US Code
99th
5662),
Cong
unpersuaded
News,
& Admin
at
we are
that IRCA
requires
such a diminution in the force and effect
state
workplace safety
contrary,
To the
in order to further
mandates.
purposes
Law,
of IRCA and
“tort deter
the laudable
our Labor
provide
compelling
principles
rence
reason to allow award
illegal
damages against
person responsible
for an
such
employment
person knew or should have
alien’s
when that
(Rosa
Prog
alien’s
v Partners
known of
status”
1000).
ress, Inc.,
13,
at
868 A2d at
NH
cogently
Department
observed,
As the Second
a different
only
protections
diminish the
afforded
conclusion would
employers
improvidently
it
Law,
would also
reward
Labor
system
knowingly disregard
employment
verification
who
primary purposes
laws.
defiance of the
of federal
wages by
recovery
An
of lost
an undocumented
absolute bar
unscrupulous employer’s potential
li
would lessen the
worker
financially
ability
it
attrac
to its alien workers and make more
(see
Quality
generally
v
to hire
aliens
Patel
tive
undocumented
[11th
700,
1988],
Cir
cert denied 489
Inn
846 F2d
S.,
Dowling
Slotnik,
781, 796, 712 A2d
244 Conn
[1989];
statutes, also
compensation
enacted
context of workers’
6.
related
all
applicable
statutes
employees,
have found such
for the benefit of
courts
borders,
here
who are not entitled
be
persons
the state’s
even those
within
817,
(see
718, 733, 882 A2d
e.g. Design
Lagos,
388 Md
Kitchen & Baths
Farms,
329;
Bros.
[2005];
at
Farmers
Waymouth
NW2d
Correa v
Cof-
Rptr
35 Cal
Bd.,
App 4th at
Appeals
133 Cal
Compensation
v Workers’
fee
I,
Velazquez,
2d
860 So
29;
Empl. Servs.
Inc. Cinto
Safeharbor
2004];
*19
2003],
but see
[Fla
2d 1224
review denied 873 So
App,
Ct
1st Dist
[Fla
175,
444, 449, 25 P3d
Sys.,
Nev
Tarango State Indus. Ins.
396, 404 [1998];
Bengal Cabaret,
Nizamuddowlah
69 AD2d
[-1979]).
lv
875,
dismissed 48 NY2d
1979],
[2d
Dept
This, coupled with the fact that
illegal aliens are
to work
willing
jobs
in
that are more
dangerous
undesirable—and
for less
money—than
their
legal immigrant
and citizen counterparts,
would
increase
actually
levels of
employment
undocumented
aliens, not decrease it as Congress sought by its
of IRCA
passage
(see Sure-Tan,
NLRB,
see also HR
893-894;
361 Workers, U 6 Pa J Lab & Undocumented Issues Emerging 512).8 atL Emp in this course, presence plaintiffs’ that recognize, We under is impermissible authorization country without is insufficient alone, however, transgression this Standing law. which damages of the a justify plaintiffs portion denying recovery civil our precedent, are entitled. Under they otherwise a constituted serious “if the conduct plaintiffs is foreclosed recovery he for which seeks injuries violation of the law and the (Barker Kallash, of that violation” were the direct result [1984]). denied to have been 19, 24 recoveries Although activities, in those cases it in illegal who have parties engaged (see Spi- e.g. that was outlawed being performed was the work Berg Wilpon, see also Sachs, vak 163, [1965]; 16 NY2d v Interurban St. Murray 2000]; 629, 629-630 Dept [2d 271 AD2d here, 1907]), whereas Ry. 35, Div App Dept [1st Moreover, neither work itself was lawful. entirely construction a makes it crime to nor federal or state statute any IRCA other unless the alien alien, be an but undocumented employed authoriza- through the use false work employment secured records also find it that significant tion documentation. We administrative or criminal proceedings here do not indicate that based on plaintiffs have been initiated prosecutions against country. their this presence employment mitigation damages do we that the issue Nor believe immigra a labor law and federal creates conflict between state dam mitigation tion law. our common-law doctrine Under subject by to reduction for future lost ages, recovery earnings injured could have party the amount of that compensation (see gener injuries inflicted the tortfeasor earned despite Inst., Cancer Bello v Roswell Park 5 NY3d ally Matter of [2005]). implicated is not when damages Mitigation is physically are serious that worker injuries worker’s so serious, Here, alleged permanent have to work. plaintiffs unable ap- not this should Majlinger that observation 8. The defendants assert of the Majlinger, were the owners they employ did not but ply to them since accepts this conten- agents. Although the dissent contractors or their property, (6) (1) impose § a nondele- § tion, that Labor Law 240 it overlooks supervise or control the work site gable safety duty if does not even the owner (see Allowing Ry. Supply, 82 NY2d Gordon v Eastern employer damages ground that it on the was paying to avoid defendants of their non- would, essence, relieve defendants partially IRCA who violated Labor thereby is inconsistent with duty produce a result delegable Law statutes.
injuries impede ability employed, allegations their to be we presume preliminary stage litiga- must to be true at this of the readily distinguishable tion. Their situations are therefore physically injured the alien worker in Hoffman, who was sought employment and could have new in violation of IRCA tendering the same false documents that him allowed to work place. in the first any any purposes may event, with conflict IRCA’s permitting wage proceed
arise from an alien’s lost claim to by permitting jury immigra- can trial be alleviated to consider damages, tion status as one factor in its determination of if *21 (see any, e.g. warranted under the Labor Law Madeira v Afford- 507-508). Supp able Hous. Found. 315 F 2d at An undocu- plaintiff example, proof mented alien for could, introduce that subsequently process obtaining he had received or was in the of required by the authorization documents IRCA and, conse- quently, likely employ- would be authorized to obtain future Conversely, ment in the United States. a defendant in a Labor allege example, wage could, Law action for a that future award appropriate not is because work authorization has not been sought approval sought but words, was denied. In other a jury’s analysis by wage proffered of a future claim an undocu- by injured any mented alien is similar to a claim other asserted person in that the determination must be based on all the of presented relevant facts and circumstances in case.9 the light considerations, In of these defendants not have overrid- presumption against preemption by the den afforded the Su- premacy per Clause. In of claims, the context Labor Law a se preclusion recovery wages employ- for lost would condone the requirements in ers’ conduct contravention of IRCA’s and promote practices, encourages unsafe work site all of which the employment objec- of undocumented aliens and undermines the designed that tives both IRCA and the state Law Labor were to accomplish. there in Moreover, is no evidence the records before (like plaintiffs Hoffman) us that the alien worker tendered employ- false documentation in violation IRCA or that their plaintiffs’ duty verify eligibility satisfied their ers In work. plaintiffs allegedly physical injuries addition, have suffered that ability employed, their have limited to be the unlike alien perceive we no applies wage 9. Because difference the test that to lost by groups types recoveries these distinct the individuals or evidence may by reject litigants, be arguments premised introduced the we defendants’ on Due Equal Process and Protection clauses. injury no whatsoever. bodily who suffered worker in Hoffman in these Labor Law on before us hold, the records We therefore (6) (1) cases, proof in the absence of § 241 §§ authorization documents false work tendered plaintiffs of a maintenance IRCA does bar obtain employment, alien. by an undocumented wages claim lost Balbuena, Division order of the Appellate Accordingly, Court costs, the order of reversed, be with should negative. in the certified answered question reinstated be af- Division should Majlinger, Appellate the order in the costs, answered firmed, question with certified affirmative. today holds that New (dissenting). J. Court
R.S. Smith, damages compensate plaintiff York courts award may I would hold that illegally. the loss to work opportunity York law that recovery such a is barred the rule New of an transac- courts will not aid achieving purpose that, tion. I hold if New York law does such permit would also law as recovery, it preempted Plastic Inc. v NLRB Compounds, interpreted I *22 with their Balbuena and made arrangements Majlinger and Control Act of violated the Reform
employers Immigration (IRCA), aliens, as long they and so remain undocumented in this make with other any arrangements they employers IRCA be also. The central was to country illegal purpose will like Balbu- illegally, who entered the United States keep people work ena, or without authorization to legally who entered but jobs in United States. As here, Majlinger, having like clear the United States Court made Hoffman: an impossible the IRCA it is un- regime, “Under to in the employment documented alien obtain contra- some party directly United States without Either the un- vening congressional policies. explicit identification, alien tenders fraudulent documented of IRCA’s enforce- cornerstone which subverts hires knowingly or the mechanism, employer ment in direct contradiction the undocumented alien 148.) (535 at its obligations.” IRCA prosecution are to civil or criminal subject Such violations (see [e], [f]; [a], § 1324a law 8 USC under penalties [b]). § § [a], [d]; 1324c 18 USC 1546 The Court in left prohibiting employment no doubt that of undocumented (535 151). policy aliens is the “critical” of the statute US at Many may disagree policy regret with that or the statute’s con- sequences, Congress’s dealing but IRCA is chosen means of problem huge importance. duty awith national It is the give policy the courts, federal, state as well effect that recognize arrangements by choice and to that the which undoc- employed illegal. umented aliens are are
II long they The New York courts have held that will not award plaintiff illegal bargain. a of an benefit haveWe referred to illegal contrary contracts, “the familiar rule that or those public policy, are unenforceable and courts will not rec- ognize rights arising (Szerdahelyi Harris, from them” Szerdahelyi applying held, Thus in we a declaratory statute we found to law, be of the common a charged lender who usurious interest could not her recover (16 principal. Spivak [1965]), In v Sachs NY2d 163 we held that lawyer York licensed New could not collect a fee for (298 legal work done New York. In Stone v Freeman NY [1948]), we held that a vendor could not recover from a broker money supposed given illegally that the broker was to have employee purchaser, saying: an of the (and probably
“It is the settled law of this State State) every party illegal other that a to an contract help carry ask a cannot court of law to him out his object, person plead prove can nor such any he, court a case in as a which basis his (id. illegal purpose” claim, must his show forth omitted]). [citations Surgical Design Corp. Dept [2d v Correa AD2d 435 2002]), Appellate employer Division held could not *23 employment enforce a notice-of-termination clause in an employee perform contract, where the contract called for the to Murray illegal Ry. activities. And in v Interurhan St. Co. 1907]), App Dept [1st Appellate Div 35 the Division held that employee wages the of a could bookmaker not recover the he injury against lost as a of in a result his tort action a third party. equi-
Decisions like are on a for these not based search the particular case, table outcome of a or on a of calculation which way, practical contribute, in an immediate most result will policy. public particular or of statute the to enforcement premise they that courts show on the sound Rather, are based they respect when and for the law themselves insufficient illegal activity. help party Brandéis As Justice to from benefit explained: he who seeks
“The aid is denied . . . when court’s very in with the it has violated the law connection legal he . . . as to redress. transaction which seeks respect in law; It denied order to maintain promote in the confidence administration order judicial justice; preserve process in order to (Olmstead States, v United from contamination” 277 omitted]). [1928] [dissenting op; citations ordinarily Accordingly, not like these the courts do bal- cases public private interests, harm, ance either to the benefit simply plaintiffs award, an dismiss the that will follow from but doing may give though claim, so to a defendant who a windfall illegally. parties it has acted “The law leaves the . . . where also omitted]). (Szerdahelyi, [citations finds 67 NY2d at them” Majlinger quite seeking the Here, Balbuena and are not illegal employment of enforcement of contracts. But because the Majlinger IRCA’s Balbuena, or others their situation violates earnings prohibitions, their claims tort actions for loss employment obtain the benefit are claims to such duty arrangements. put of courts Their claims risk the thus illegality. system legal promotion risk This our avoid by calculating incentive the deterrence or cannot be resolved Recovery permitting recovery. we Eire value of is barred unless governed by exception to the are to hold that these cases illegal bargains. not rule that courts do award benefit important is, rule, it is not absolute: That “ statutory provi ‘[w]here contracts which violate merely general prohibitum, are malum sions apply. always not If the statute does rule does provide deprive expressly its will violation right contract, parties and the on the of their to sue wholly proportion out denial of relief is right policy public re requirements . . . the ” Corp. (Lloyd Capital not be denied.’ cover will quoting [1992], Henchar, Inc., NY2d Pat *24 Creameries, v Cohen, Rosasco Inc. 276 NY [1937].) exception might apply involving But while this in some cases apply aliens, undocumented it not does here. argument allowing
There would much be a better for Balbu Majlinger they ena recover if done for had work which employers pay they suing their them, had refused to were wages. injustice denying for recovery—embodied case, their In such a the hardship in
both the to the workers and employers—would gross, enrichment of be and it could strongly argued wholly be that denial “the of relief is out of proportion requirements public policy.” In a case, such might we consider whether we would characterize IRCA viola (evil “merely prohibitum” prohibited) tions as malum because (evil themselves), recovery. in rather than malum se and allow (Nizamuddowlah Bengal A number decisions this state [2d Dept Cabaret, 69 AD2d 1979]; 6 Misc Falco, Gomez 3d [App Dept Term, 2004]; Serv., Ulloa v All Tree Al’s Misc 2003]) [Nassau County 3d 262 Ct Dist federal courts 2002]) (e.g., Amigon, Supp [ED Flores v F233 2d 462 NY hold may compensa that undocumented aliens recover at least some they actually performed, imply tion work for have I and do not that should we hold otherwise. Majlinger
But these cases are different. Balbuena nor Neither seeking compensation performed. actually is for fact, work suing employer. suing neither is even his Each themof is third parties—in case, Balbuena’s the owners of the construction site Majlinger’s alleged and in several entities to be site owners general any contractors—who had no involvement with and/or They violation laws. claim that defendants injuries personal plaintiffs are liable suffered, and that pay damages including defendants should the amount plaintiffs, accidents, but for their in their il- would have earned legal employment. employer Balbuena’s is named as third- party defendant, it clear but is not from record whether against employer Maj- defendants’ claim over will succeed. linger’s employer party not a at all. is involving arrange- these are not cases,
Thus some give are, in ments which to the claim to dismiss a windfall to guilty wrongdoing plaintiff, a defendant at least as as the deny recovery plaintiff uncompensated which is to leave a actually wrong Maj- for work done. The which Balbuena linger compensation earnings seek the form of lost is that them, working injuries prevented in the United have their States—exactly to ac- IRCA was intended the result by rejecting policy except complish. on how, I do see *25 remedy say premised, that of the we can denial IRCA is which plaintiffs public requirements proportion to the is out of seek policy. illegal permit parties to recover on the basis courts
When unseemly. example, consequences For transactions, the can be may suggests telling jury majority im- a it “consider that the migration of the dam- as one factor in its determination status 362). (majority op ages” that instruction at But what does message: depend plaintiffs damages his “The on mean? Is the likely getting caught; the he is to evade chances of the more jury damages you may Or, if more award”? the authorities, the give weight policies, supposed much to to IRCA is to decide how only important message is: “A of the law as then the violation is only you a not, best, want it to be.” The instruction that is at embarrassing system says in one that substance: bit is may damages earnings employ- any lost “You not award for The ment that would have violated the laws.” given. today may holds that an instruction not be Court such loosely by vexing problem presented A what is still more is plaintiffs precisely, “duty” mitigate damages—more a called plaintiff mitigate a rule a who not will suffer that does damages. plaintiff a reduction in may like these—who Is case say, not less disabled, be from construction work but mitigate by seeking activity—required to alternative strenuous May damages illegal employment? he a reduction in his avoid any job declaring belatedly, not decided, he to seek that has surely may lawfully be hired? It unfair which he is illegal wages may recovered, but hold that lost be defendants to mitigation; yet only wages may legal it be that considered punish plaintiff hold law will also seems intolerable to that the majority failing to finesse to violate the law. The tries (see major- correctly opinion question by assuming, if I read its totally 361), ity op plaintiffs dis- two are these cases certainly they may not all so, and from work. But not be abled majority plaintiffs no offers make claims The such will be. who they mitigation arise. as to issues can be handled when clue how earnings on an based I hold that award lost sum, would carry purpose employment prohibited out the IRCA would impermissible under transaction and is therefore principles follow I decline to New York law. would established (Collins Appellate City Division cases New York Health & Hosps. Corp., [2d Dept 201 AD2d 1994]; Public Adm’r of County Equitable Socy. Bronx U.S., Assur. 192 AD2d Life 1993]) [1st Dept otherwise. I do Thus, hold not think it necessary preemption reach issue.
Ill majority The little assumes with discussion New York preempted, permit recovery earnings law, if not would of lost analysis wholly cases, these and devotes its almost to the federal preemption disagree, explained, I issue. as I have with the majority’s disagree I view New York law. also with the majority’s preemption. on decision preemption agree, depends interpreta- issue, as all on
tion of in which Hoffman, Court held that a *26 pay National Relations award Labor Board of back “to an un- legally alien documented who has never been authorized to by immigra- work in the is United States ... foreclosed federal (535 expressed policy, by Congress [IRCA]” tion as in US at 140). argue in Defendants these cases is what true an pay NLRB back award also be true must of the awards for lost earnings Majlinger that Balbuena and seek. If is one “foreclosed immigration policy,” federal so is Thus, the other. defendants argue, permits plaintiffs law, state to the that it extent these to earnings, accomplish- recover lost an “stands as obstacle to the objectives purposes Congress” ment of full the and is preempted (California therefore Coastal Comm’n Granite Rock argument I think is this correct. majority distinguish ground The tries to on the Hoffman employee plaintiffs pre- the in here, involved unlike Hoffman, employer purported sented his with false documents that to au- majority says, dependent thorize him work. the “is Hoffman, including point on facts, its the critical that the alien tendered 360). op (majority false documentation” I at do not think this reading narrow the is consistent with Hoffman opinion Court’s read as a whole. holding The court’s statement its at the outset of Hoffman opinion quoted the
its pay is broad one I an award above: of back legally “to an undocumented alien who has never been au- in thorized to the States work United ... is foreclosed (535 140). policy” explain- Later, in US at ing holding, specifically for its the Court reasons refers to ways possible both of alien which undocumented can employment: alien tenders the undocumented obtain “Either knowingly employer hires or identification ... fraudulent of its IRCA alien direct contradiction the undocumented 148). obligations” makes clear both US at The Court contrayente] congressional policies” “directly explicit of these (id.). holding again in broad terms: The then states its Court awarding illegal backpay to aliens runs find . . “We . that 149). (id. again, policies underlying at And IRCA” counter opinion: allow- near ing end “We therefore conclude that of its unduly backpay illegal aliens would the Board to award statutory prohibitions upon explicit im- critical to federal trench (id. 151). migration policy, expressed in as IRCA” at Court emphasizes, mention, does the fact that the em- times ployee documentation, the Court used false but Hoffman say might, conspicuously come would, fails to that the case present. way if not out the other that fact were majority agree I with here that the conduct the undoc- than the of Bal- umented alien was worse conduct they Majlinger. did crime, He committed a not. buena employers—who, Majlinger suing If their on Balbuena and were may criminally hiring cases, well acted facts these have demanding them—the differ- them without documentation from culpability might suggested above, a relevant; ence in be as I suing greater may case in one which a lesser offender is always) (though exception qualify sometimes not for an general will rule that lawsuits based on transactions But, I above, be countenanced. said neither these cases *27 majority’s attempt case, such I find to draw an anal- a and suggested majority ogy totally unpersuasive. idea, The (at 8), opinion employers’ n of the im- that the violations migration may imputed be to defendants here—the owners laws job on of the and the contractors who worked them—under sites (1) (6) § § to me to Law 240 and seems New York Labor precedent any support or in statutes, lack in the text those common sense. preemption depends not Balbuena here on whether issue Majlinger IRCA, on but
and committed criminal violations earnings awarding IRCA’s will undermine whether policy. them lost policy very submit, I clear, makes Hoffman employed may aliens IRCA that undocumented be behind is pay—from States, that an award of back in the United and earnings indistinguishable— of lost which award policy. hold I would therefore undermines case, controls this and that law preempts any New York law which would otherwise lost permit earnings award in cases. these
IV I would Accordingly, affirm order of the Appellate Divi- LLC, Balbuena v IDR sion in Realty and would reverse the or- v Cassino der in Majlinger Contr. Corp. Kaye Ciparick
Chief and Judge Judges G.B. and Smith, Graffeo; concur with Rosenblatt R.S. Smith dis- Judge Judge sents to affirm votes in a separate which opinion Judge Read concurs.
In Balbuena IDR LLC: Realty reversed, Order etc. Kaye Ciparick
Chief Judge Judges G.B. Smith, Graffeo; concur with Judge Rosenblatt R.S. Smith dis- Judge sents and separate votes reverse which opinion Judge Read concurs. Majlinger Cassino Contr. Corp.: On review of submis- pursuant
sions to section 500.11 the Rules Court Appeals 500.11), NYCRR order affirmed, costs, with certified answered in the question affirmative.