Can an “Undocumented (“Illegal”) Alien recover for an injury?
Should an “undocumented alien” bother to bring a lawsuit should he/she be injured?
It is clear that millions of persons in our American workforce are present in the United States without proper documentation. As any other worker, these individuals are subject to dangers in both the workplace and in pursuit of their everyday lives.
If any person institutes a lawsuit, there are several areas of loss that go into determining the “damages” that resulted from that injury. The major areas are “pain and suffering”, out of pocket expenses such as medical expenses and often, most significantly, loss of income, past and future.
To begin with anyone, documented or not, may bring a lawsuit. The status of an individual in New York is not relevant at all when referring to “pain and suffering” or “out of pocket” expenses. The fact that someone is “undocumented” does not in any way disqualify that person from bringing a lawsuit, whether work related or otherwise.
The difficulty arises with respect to past and future wages and income lost by that person . The argument was presented that if someone is theoretically disqualified from working because they do not have the proper documentation, then how can that person make any claim for wages lost as a result of an accident that prevents them from working.
The question is a valid one. Those arguing against permitting the recovery of lost wages say that to permit recovery would undermine the immigration policies of the United States since it would encourage aliens to continue to enter the United States, even without proper documentation, and enter our workforce.
New York’s highest court, the Court of Appeals, on Feruary 21, 2006, decided that undocumented aliens COULD NOT BE BARRED from recovering lost wages in a lawsuit. The court said that to do otherwise would only reward employers for hiring undocumented aliens and would actually encourage employers to hire more undocumented aliens.
One big warning: If it can be shown that the injured employee obtained their job through deception and fraud, then that person will not be able to obtain their lost wages. This makes sense because the employer, when hiring the employee, thought the person was “legal” and only hired him/her because of the fraud. There was no intent by the employer to reap a benefit from hiring an undocumented alien.
Whether you are “undocumented” or not, it is very important to contact a competent injury attorney with experience in dealing in these matters, as soon as possible, in order to protect all your rights and interests.
Posted by New York Injury Attorney Steve Orlow