To Pay Or Not To Pay ... That's NOT The Question

In yet another in the long line of cases upholding payment to illegal immigrants for work performed, we have Jara v. Strong Steel Doors, Inc. (NYS Supreme Court, Kings Co., index no. 14643-05, decided September 12, 2007).

In Jara, the Plaintiffs (illegal immigrant workers) brought a class action alleging that they, and others similarly situated, were not paid prevailing wages, supplemental benefits and overtime compensation by Defendants for work performed on various public works construction projects. The Defendants moved, inter alia, for partial summary judgment based on: (a) a claim that one of the Plaintiffs had submitted fraudulent documents when applying for employment with one of the Defendants in violation of the Immigration and Reform Control Act of 1986 (“IRCA”), which criminalizes the presentation of forged evidence of entitlement to employment within the United States; and (b) the decision of the United States Supreme Court in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 US 137 (2002), which held that an illegal alien who gained employment by presenting false work authorization documents was not entitled to backpay for work that he would have performed absent a wrongful termination in violation of the National Labor Relations Act.

In denying the Motion, the court held that the decision in Hoffman was inapplicable since the case concerned an award of backpay for work not actually performed and did not establish that an award of unpaid wages for work that was performed ran counter to IRCA. The court noted that unlike the facts in Hoffman, the Plaintiffs actually performed the work in issue and that the workers’ failure to comply with IRCA did not permit an employer to disregard State prevailing wage requirements in a public works contract.

Look, folks. This is not rocket science. As a general proposition, anybody who performs work is entitled to be paid regardless of their immigration status or whether such person has presented fraudulent documentation in connection with their employment. There is simply no such thing as “free” labor under the law, yet despite this basic concept, the number of employers who continue to think otherwise continues to astound me.