What Goes Around, Comes Around

In Gomez v. F&T Int'l (Flushing, New York) LLC, 101817/05 (New York County Supreme Court, June 25, 2007), the two Plaintiffs were undocumented workers. They were employed by a demolition company (a subcontractor on the Project) and were injured in an accident on site when a portion of the building on which they were working collapsed. One of the workers suffered multiple fractures to his vertebrae, requiring spinal fusion, and resulting in paraplegia; the other Plaintiff sustained bilateral wrist fractures, necessitating surgery to his right hand. The evidence showed that the Defendant employer did not have a safety director at the site, the Plaintiffs were initially not provided with hard hats when they began their employment, and neither of them were provided with harnesses on the date of the accident. Both workers sued for lost wages.

At the time they were hired and thereafter, Plaintiffs were not required to fill out a work application or to show any type of identification, were not asked for a social security number, were always paid in cash, and were never given W-2 forms. In short, the Defendants failed to comply with the requirements of the Immigration Reform & Control Act of 1986 (“IRCA”); under IRCA the onus is on an employer to make certain that it hires a person authorized to work and the failure to do so exposes the employer to civil and criminal prosecution and penalties. After the action was commenced, the Defendants owner and general contractor, moved to compel the production of information about Plaintiffs’ immigration status and argued that Plaintiffs’ lost wage claims could not be maintained because they were illegal aliens.

In denying Defendants’ Motion, the Court held that IRCA did not penalize an alien for attaining employment without having proper work authorization absent a showing the worker engaged in fraud, such as presenting false documentation to secure the employment. The Court found that none of those factors were present in this case. Further [and this is the part I like best], the Court stated: “... it seems somewhat disingenuous for contractors and owners to seek disclosure of the status of an employee after the employee has been injured under the guise of attempting to mitigate a lost wage claim, a concern which apparently never entered their minds when the work was bid out [or when the Plaintiffs were hired].” Accordingly, Plaintiffs’ lost wage claims could proceed.

Ya gotta love decisions like this one ... hooray for the good guys.