Tuesday, November 18, 2008

Illegal Aliens May Recover Unpaid Wages

Last week, the Appellate Division, Second Department, held that illegal aliens who provide false documentation to an employer may recover for unpaid wages if the employer violated the federal Immigration Reform and Control Act of 1986 ("IRCA"). The case is Coque v. Wildflower Estates Developers. This is an important case in New York as it penalizes employers who violate IRCA. As the Court stated: [W]here an employer is complicit in an illegal hire, foreclosing the employee from recovering damages for lost wages does not discourage violations of federal immigration law, but has exactly the opposite effect, from the employer's perspective."

The Coque decision further evidences the erosion in New York of the holding of the United States Supreme Court in Hoffman Plastic Compounds v. National Labor Relations Board, 535 U.S. 137 (2002) which prevented an award of backpay to an undocumented alien who had never been legally authorized to work in the United States. Indeed, in Balbuena v. IDR Realty, 6 N.Y.3d 338 (2006), the New York Court of Appeals held that the holding in Hoffman Plastic did not pre-empt worker protections under New York law. The decision in Coque continues the trend toward protecting undocumented and illegal immigrant workers.

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