Opinion
No. 2022-CC-00991
11-01-2022
Norma Vanessa MARTINEZ v. State of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
Writ application denied.
Weimer, C.J., concurs, finding an adequate remedy on appeal.
Crichton, J., would grant and docket.
Crain, J., would grant.
McCallum, J., would grant and docket and assigns reasons.
McCALLUM, J., would grant and docket, and assigns reasons.
I would grant and docket this matter to fully evaluate the important issue raised in this writ application.
Only one Louisiana court has considered whether an undocumented worker is entitled to recover lost wages under Louisiana law. Maldonado v. Kiewit Louisiana Co ., 2012-1868 (La. App. 1 Cir. 5/30/14), 152 So.3d 909, involved a claim for damages, including lost wages, resulting from a work-related accident. The court of appeal answered the question in the affirmative. Id ., 2012-1868, p. 46, 152 So. 3d at 941 (finding "no valid reason to deny recovery of an element of damages available in tort cases, i.e . lost wages from a third-party tortfeasor, simply because the damages are sustained by an illegal, undocumented worker." Id ., 2012-1868, p. 46, 152 So. 3d at 941 ). Although the court further noted that the worker's status "is not relevant to the issue of liability and will not automatically preclude recovery of lost wages," it observed that the worker's status is relevant as to "what amount to award for loss of support." Id ., 2012-1868, p. 46, 152 So. 3d at 941. (Emphasis in the original).
The issue presented by this writ application is one that will undoubtedly arise more frequently in the future and, for this reason alone, I believe that the writ application should be granted for closer examination by this Court.
More importantly, in my view, the writ application should be granted because the lower courts erred in denying the Department of Transportation and Development's ("DOTD") motion for partial summary judgment. Although no case law in Louisiana directly states that undocumented aliens have a right to pursue claims for personal injury damages, other jurisdictions recognize this right, and I agree that an undocumented person has standing to sue for personal injuries under La. C.C. art. 2315. In my view, however, a lost wage claim is a wholly separate issue and, while Maldonado and cases from other jurisdictions have found that an undocumented alien has a right to lost wages, this Court should reject that view and hold that there is no such right.
While the trial court denied summary judgment because it found that "as a matter of law, ... a wage claim made by undocumented immigrants under Louisiana Civil Code article 2315 [ ] is not preempted by federal law," the court of appeal declined to exercise its supervisory jurisdiction because "the reversal of the district court's ruling would not terminate litigation." Martinez v. State of Louisiana through the Dept. of Transp. and Dev ., 2022-0239 (La. App. 4 Cir. 5/24/22) (unpub.), citing Herlitz Cons. Co. v. Hotel Inv'rs of New Iberia, Inc , 396 So 2d 878 (La.1981) ).
In Maldonado , there was no specific reference to the right of an undocumented person to pursue damages, although the right is implicitly acknowledged by virtue of the damages award.
See , e.g ., McKean v. Yates Eng'g Corp ., 200 So. 3d 431, 437 (Miss. 2016) (" because our courts are open to every person, an alleged undocumented immigrant is not barred from tort recovery solely based on his alleged undocumented status"); Peterson v. Neme , 222 Va. 477, 481, 281 S.E.2d 869, 871 (1981) ("Although the Supreme Court has never had occasion to decide whether aliens unlawfully resident in the United States have standing to sue, lower federal courts and courts in sister states have decided the question in the affirmative."); Montoya v. Gateway Ins. Co ., 168 N.J. Super. 100, 103–04, 401 A.2d 1102, 1103 (App. Div. 1979) ("a well established body of law holds that illegal aliens have rights of access to the courts and are eligible to sue therein to enforce contracts and redress civil wrongs such as negligently inflicted personal injuries"); Arteaga v. Literski , 83 Wis. 2d 128, 133, 265 N.W.2d 148, 150 (1978) ("Our law permits recovery for injuries negligently inflicted on one's person. The Constitution says every person, it does not limit its protection to citizens or aliens lawfully admitted.").
See , e.g ., Ayala v. Lee , 215 Md. App. 457, 477, 81 A.3d 584, 596 (2013) ; Kalyta v. Versa Prod., Inc., No . CIV.A. 07-1333 MLC, 2011 WL 996168, at *7 (D.N.J. Mar. 17, 2011) (unrep.); Cordova v. 360 Park Ave. S. Assocs ., 33 A.D.3d 750, 751, 823 N.Y.S.2d 435 (2006).
Congress enacted the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq ., ("INA") as a "comprehensive and complete code covering all aspects of admission of aliens to this country, whether for business or pleasure, or as immigrants seeking to become permanent residents." Toll v. Moreno , 458 U.S. 1, 13, 102 S.Ct. 2977, 2984 (1982) (quoting Elkins v. Moreno , 435 U.S. 647, 664, 98 S.Ct. 1338, 1348 ). The INA "sets out the ‘terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’ " Kansas v. Garcia , 140 S. Ct. 791, 797 (2020) (quoting Chamber of Commerce of United States of America v. Whiting , 563 U.S. 582, 587, 131 S.Ct. 1968 (2011). Almost forty years ago, the United States Supreme Court recognized that the INA has an "important objective of deterring unauthorized immigration that is embodied in the INA." Sure-Tan, Inc. v. N.L.R.B ., 467 U.S. 883, 903, 104 S. Ct. 2803, 2814 (1984). Although the INA did not initially prohibit the employment of illegal aliens, in 1986, Congress enacted the Immigration Reform and Control Act ("IRCA") which made unlawful the knowing employment of unauthorized aliens or the continued employment of unauthorized aliens after learning of an alien's status. See Kansas , 140 S. Ct. 791, 797. More specifically, 8 U.S.C.A. § 1324 (a), entitled "(a) Making employment of unauthorized aliens unlawful" provides, in pertinent part, as follows:
(1) In general
It is unlawful for a person or other entity –
(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien ...with respect to such employment ...
* * * *
(2) Continuing employment
It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.
The IRCA provides criminal penalties for the employment of unauthorized aliens: "Any person or entity which engages in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2) shall be fined not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than six months for the entire pattern or practice, or both, notwithstanding the provisions of any other Federal law relating to fine levels." 8 U.S.C.A. § 1324a (f)(1). As the Supreme Court noted in Arizona v. United States , 567 U.S. 387, 404, 132 S. Ct. 2492, 2504 (2012) (quoting Hoffman Plastic Compounds, Inc. v. NLRB , 535 U.S. 137, 147, 122 S.Ct. 1275 (2002), "Congress enacted IRCA as a comprehensive framework for ‘combating the employment of illegal aliens.’ " The Arizona Court further noted that, although the IRCA does not impose federal criminal sanctions on unauthorized aliens who "seek or engage in unauthorized work," there are a number of civil penalties:
With certain exceptions, aliens who accept unlawful employment are not eligible to have their status adjusted to that of a lawful permanent resident. See 8 U.S.C. §§ 1255(c)(2), (c)(8). Aliens also may be removed from the country for having engaged in unauthorized work. See § 1227(a)(1)(C)(i); 8 CFR § 214.1(e). In addition to specifying these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means. See 18 U.S.C. § 1546(b).
Id. , 567 U.S. at 404-05, 132 S. Ct. at 2504.
Louisiana law contains a similar prohibition against hiring undocumented workers. Under La. R.S. 23:992, a statute enacted in 1979, more than forty years ago, "[n]o person, either for himself or on behalf of another, shall employ, hire, recruit, or refer, for private or public employment within the state, an alien who is not entitled to lawfully reside or work in the United States." Louisiana imposes certain fines for violations of this statute, which are increased by repeated violations. See La. R.S. 23:993. Accordingly, one cannot seriously contest the conclusion that illegal aliens have no legal right to employment under either Louisiana or federal law. See , e.g ., Perdomo v. RKC, LLC , 2017-112, p. 14 (La. App. 5 Cir. 11/29/17), 232 So. 3d 90, 100 (the plaintiff, an undocumented person, "cannot legally obtain employment in the United States, and employers are prohibited from hiring him due to his immigrant status"); Hoffman Plastic Compounds, Inc. v. N.L.R.B ., 535 U.S. 137, 148, 122 S. Ct. 1275, 1283, (2002) ("it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA's enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations."). As observed by the Supreme Court, in finding that a California statute barring employers from "knowingly employing "persons not entitled to lawful residence in the United States, let alone to work here," was "certainly within the mainstream of such police power regulation":
Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions. These local problems are particularly acute in California in light of the significant influx into that State of illegal aliens from neighboring Mexico.
DeCanas , 424 U.S. at 356-57, 96 S. Ct. at 937
The Supreme Court later spoke again on the importance of "combating the employment of illegal aliens," which the IRCA made "central to ‘[t]he policy of immigration law.’ " Hoffman , 535 U.S. at 147, 122 S. Ct. at 1282. The Hoffman Court considered whether the National Labor Relations Board ("NLRB") could award back pay to an undocumented alien whose employment had been terminated in violation of federal law. The Supreme Court held that it could not, noting that "awarding backpay in a case like this ... trivializes the immigration laws...." Hoffman , 535 U.S. at 150, 122 S. Ct. at 1284. The Court then concluded that:
... allowing the [NLRB] to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.
Id ., 535 U.S. at 151, 122 S.Ct. 1275.
While the instant case presents a different issue than Hoffman , the policy enunciated by the Supreme Court in Hoffman could not be clearer: the Court rejected the principle that an illegal alien should be allowed to recover backpay, "for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud." Id . 535 at 149, 122 S.Ct. 1275. Such an award "runs counter to policies underlying IRCA." Id . Again, that policy of the IRCA is to combat the employment of illegal aliens.
In refusing to allow a claim for lost wages by an illegal alien, Louisiana would not be alone; several states have rejected these claims. In Veliz v. Rental Serv. Corp . USA, 313 F. Supp. 2d 1317, 1336 (M.D. Fla. 2003), for example, an undocumented worker was killed in a work-related accident and the representative of his estate filed a wrongful death suit against third parties. The defendants filed summary judgment motions seeking the dismissal of several claims, including the lost wage claim. In granting summary judgment on the lost wage claim, the court cited Hoffman , and found that it "cannot condone an award of lost wages here." Id ., 313 F. Supp. 2d at 1336. It observed: "In addition to trenching upon the immigration policy of the United States and condoning prior violations of immigration laws, awarding lost wages would be tantamount to violating the IRCA." Id . Notably, the Court recognized that Florida allows an undocumented alien to receive worker's compensation benefits. However, the court rejected the principle that this should also permit an award for lost wages, finding:
[W]orkers’ compensation benefits reflect numerous policy considerations on the part of the Florida legislature—policy considerations that the legislature has obviously made in this instance. After all, if undocumented aliens were not included within the definition of employee for purposes of workers’ compensation benefits, then they would be permitted to sue their employers in tort for work related injuries.
In the converse, lost wages constitute neither a type of insurance, nor a substitute for the Florida tort system. Nor do they reflect serious policy considerations on the part of the Florida legislature. Instead, they represent another remedy available to tort victims in addition to pain and suffering, medical expenses, funeral expenses, punitive damages, etc.
Thus, while awarding workers’ compensation benefits is not inconsistent with the decision rendered in Hoffman , awarding lost wages is. Backpay and lost wages are nearly identical; both constitute an award for work never to be performed.
In sum, permitting 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 salutory [sic] purpose it would simultaneously undermine."
Id ., 313 F. Supp. 2d at 1337 (internal quotation omitted).
A later decision confirms that, in Florida, an illegal alien may not recover lost wages. Hernandez v. Altec Environmentalproducts LLC, No . 10-80532-CIV, 2011 WL 13108059, at *2 n.4 (S.D. Fla. Nov. 23, 2011) ("While a plaintiff's claims for lost wages may be barred because he or she is an illegal alien that cannot lawfully work in this country, the same does not apply to a plaintiff's future medical or life care expenses, which are unrelated to a plaintiff's compliance with the employment provisions of the IRCA."). See also , Larreal v. Telemundo of Fla ., LLC, 489 F. Supp. 3d 1309, 1326 (S.D. Fla. 2020) ("Plaintiff's immigration status as an undocumented overstay precludes recovery of lost future earnings as a matter of law.").
A Kansas court reached the same conclusion in Hernandez-Cortez v. Hernandez , No. CIV.A. 01-1241-JTM, 2003 WL 22519678 (D. Kan. Nov. 4, 2003) (unpub.), a case involving injuries to an illegal alien as a result of a car accident. As concerns the claims for lost wages, the court found that, although an illegal alien might be entitled to past wages, the plaintiff was seeking "damages based on projected earnings rather than work already performed." Id ., 2003 WL 22519678, at *6. After reviewing Hoffman and 8 U.S.C.A. § 1324a, the court held that the plaintiff's "status as an illegal alien precludes his recovery for lost income based on projected earnings in the United States." Id . See also , Garcia-Lopez v. Bellsouth Telecommunications, Inc ., 2010 WL 1873042, at *7 (S.D. Miss. May 7, 2010) (unpub.) ("The Court finds that the plaintiffs’ lost wages and loss of earning capacity claims are barred by IRCA and Hoffman Plastic , because any work performed by the plaintiffs in the United States would be illegal. The Court further finds that any claim for lost wages or earning capacity whether pertaining to the United States or the plaintiffs’ native countries would be entirely speculative.").
Kansas does allow the recovery of worker's compensation benefits by an undocumented worker even though "not legally authorized to work in the United States when ... hired." Mera-Hernandez v. U.S.D. 233 , 305 Kan. 1182, 1183, 390 P.3d 875, 876 (2017).
In my view, this Court should follow the Veliz, Hernandez-Cortez , and Garcia-Lopez decisions and rule that an undocumented alien may not recover lost wages as a matter of law; federal immigration policy is thwarted by allowing an award to an undocumented alien for lost illegal wages. Such a finding would be warranted because undocumented persons are not legally present in the United States, were never lawfully entitled to be present or employed in the United States, and thus, are not entitled to work and earn wages. An adoption of this principle would be consistent with the policy expressed by the Supreme Court in Hoffman that an award of compensation for wages that an alien would have earned illegally in the United States (much like the award of backpay at issue in Hoffman ) "runs counter to," and "unduly trench[es] upon," the federal immigration policies embodied in the IRCA.
Although its decision was ultimately abrogated, one court perhaps best expressed why an award to an undocumented person for lost wages should be prohibited:
We are not aware of any other context in which a person who has derived income from an illegal activity is permitted, after a personal injury forces him to abandon that activity, to recover damages based on the lost stream of illegal income through judicial proceedings in a court of law.
Sanango v. 200 E. 16th St. Hous. Corp ., 15 A.D.3d 36, 43, 788 N.Y.S.2d 314, 320-21 (2004), abrogated by Balbuena v. IDR Realty LLC , 6 N.Y.3d 338, 845 N.E.2d 1246 (2006). Likewise, as the dissenting opinion noted in Rivera v. NIBCO, Inc ., 384 F.3d 822, 823 (9th Cir. 2004) (Bea, J., dissenting), relying on Hoffman , "[t]he fact is that if plaintiffs do not have authorized immigration status, they are not entitled to be awarded back wages or wages they might have earned in the future from a job which they were incapable of holding, under our Immigration laws."
I would further note that, under Louisiana law, "in order to be awarded lost wages, a plaintiff must prove positively that he would have been earning the wages but for the accident in question." Boyette v. United Servs. Auto. Ass'n , 2000-1918, p. 5 (La. 4/3/01), 783 So. 2d 1276, 1280. While a lost wage claim need not be proven with mathematical certainty, there must be "such proof which reasonably establishes plaintiff's claim." Driscoll v. S tucker, 2004-0589, p. 53 (La. 1/19/05), 893 So. 2d 32, 53 ; Doe v. Lewis , 2020-0320 (La. App. 4 Cir. 12/30/20), 312 So. 3d 1165, 1177. When a plaintiff is an illegal alien, subject to deportation at any given time, an award for lost wages could only be based on conjecture. As noted by a Wyoming court, "[w]hether undocumented workers ‘would work in the United States for any length of time...is ‘inherently speculative.’ " Romero v. Reiman Corp ., 2011 WL 11037890, at *4 (D. Wyo. Dec. 21, 2011) (quoting Cruz v. Bridgestone/Firestone , 2008 U.S. Dist. LEXIS 107379, *15 (Dist.N.M.2008) (unrep.). The Romero court stated:
Even the Maldonado court noted that the plaintiff was "not legally authorized to be in this country, [and] was subject to deportation at any time. Maldonado ., 2012-1868, p. 46, 152 So. 3d at 941. See also , Arizona , 567 U.S. at 405, 132 S. Ct. at 2504, ("Aliens also may be removed from the country for having engaged in unauthorized work.").
Federal law prohibits employers from knowingly hiring or retaining illegal aliens. See 8 U.S.C. § 1324 (2011). Additionally, aliens are prohibited from using
fraudulent means to secure employment and are further subject to arrest and deportation. See 8 U.S.C. § 1227. Thus, there is no guarantee an illegal alien will remain in their present job, or even in the country, for the remainder of their working lives.
Id.
The fact that some courts have distinguished a claim for lost wages and a worker's compensation claim does not alter my opinion on the issue before us. Even if one agrees with those courts that have recognized the right of an illegal alien to claim workers’ compensation benefits, which I do not stipulate, the difference in the underlying rationale is easily recognizable.
In Perdomo, supra , the court found that awarding workers’ compensation benefits to an illegal alien was justified. Because the employer had failed to comply with federal law regarding the hiring of illegal aliens, it was imputed with having knowledge of the employee's undocumented status when he was hired, and should have known of his "ineligibility for rehiring in the event of an injury within the course and scope of his employment." Id ., 2017-112, p. 14-15, 232 So. 3d at 101. The court held that the employer, being complicit in the illegal activity, "should fairly bear the responsibility for [the employee's] current predicament." Id .
It could be argued that an employer who does not comply with federal law in hiring illegal aliens should be imputed with having knowledge of an employee's undocumented status at the time of his hiring as the court found in Perdomo . As such, the employer would have unclean hands and should bear the burden of an employee's on-the-job injury. The same does not hold true for a claims against third parties for lost wages resulting from the third-parties’ alleged negligence. These third-parties are not complicit in the presence of the illegal aliens in the United States, did nothing to foster their violation of federal immigration laws, and, thus, do not share the same responsibility as an employer of an illegal alien.
Based on the foregoing, in my view, the writ application should be granted and the case docketed so that the issue presented can be more thoroughly examined.