Casualty

Key Points:

• Defending against an undocumented worker’s future wage loss and/or loss of future earnings capacity claim in a personal injury action filed in Pennsylvania in such a volatile area of practice is fraught with difficulty and uncertainty. 
• In light of the indeterminate state of Pennsylvania law, effectively defending against such future wage loss claims involving undocumented workers will necessarily require extensive and strategic written discovery, careful factual investigation, effective deposition questioning and tactics, close monitoring of sister-state jurisdictions for persuasive authority and added guidance, and (likely) significant pre-trial motion practice.

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June 2024 Bureau of Labor Statistics’ data indicates that foreign-born workers comprised nearly 19.2% of the entire civilian labor force in the United States. Undocumented immigrant workers, in particular, appear to make up a disproportionate percentage of the construction workforce, with one recent study by The Century Foundation suggesting undocumented migrants, nationally, commanded roughly 23% of all construction site jobs. In 2020 alone, construction laborers accounted for 11.9% of all reported fatal falls, slips, or trips across all occupations. Defending against an undocumented worker’s future wage loss and/or loss of future earnings capacity claim in a personal injury action filed in Pennsylvania in such a volatile area of practice is fraught with difficulty and uncertainty. 

Hoffman Plastics and Subsequent Court Confusion
In a significant decision handed down in 2002, the U.S. Supreme Court, in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), overturned an award of back pay to an undocumented migrant worker, Jose Casto, who was found to have been unlawfully discharged by his employer, in violation of the National Labor Relations Act, for engaging in union organizing activities. In reaching this determination, the court reasoned that awarding such back pay to Castro would run afoul of the comprehensive employer sanctions scheme of the Immigration Reform and Control Act of 1986 (IRCA). It noted the IRCA constitutes a “comprehensive scheme prohibiting the employment of illegal aliens in the United States” and that it mandated “an extensive employment verification system . . . designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States[.]” The high court emphasized: 

Under the IRCA regime, 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. 

It further cautioned a contrary ruling would have set the stage for the grant of back pay to undocumented workers “for years of work not performed, for wages that could not lawfully have been earned” in the first place. 

Much ink has been spilled by courts across the nation since Hoffman Plastic was first decided in an effort to decipher whether, and to what extent, its core holdings apply in the context of state-based tort claims filed by undocumented migrants seeking damages for future wage losses. Courts in different jurisdictions have reached inconsistent conclusions and findings in this regard. 

Some courts have held that undocumented tort claimants should be precluded altogether from pursuing future lost wages/earning capacity damages. For example, in Rosa v. Partners in Progress, Inc., 868 A.2d 994, 1002 (N.H. 2005), the New Hampshire Supreme Court held that “an illegal alien may not recover lost United States earnings.” Similarly, in Hernandez-Cortez v. Hernandez, 2003 WL 22519678, *7 (D. Kan. 2003), the District of Kansas determined that the plaintiff’s undocumented status prohibited any recovery for alleged lost income based on his projected wage earnings in United States. 

Other courts, by contrast, have determined that undocumented tort claimants’ recovery of such wage loss/lost earning damages should be limited in their recovery as measured at wage levels based upon the prevailing wage rates in their home countries (as opposed to being measured at United States wage levels). For instance, Ayala v. Lee, 81 A.3d 584, 597 (Md. Ct. Spec. App. 2013) highlighted that the plaintiff’s immigration status was relevant to the claim for lost wages since the ability to obtain legal work impacted the likelihood of future earnings in United States and whether the plaintiff was entitled to lost wages at a United States pay rate or home country rate. Also, in Cruz v. Bridgestone/Firestone North America Tile, LLC, 2008 WL 5598439, at *6–7 (D. New Mexico 2008) the plaintiff’s economics experts were barred from offering opinions at trial on the undocumented claimants’ loss of future earnings based upon United States wage levels due to failing to make “any attempt to acknowledge the Mexican citizenship of [the claimants] or the legal barriers to their earning the average American wages which are the foundations of both experts’ studies.” 

To date, the Pennsylvania Supreme Court has not expressly weighed in on the scope or availability of such future wage losses for undocumented workers pursuing personal injury claims. But, it has previously found, albeit in the context of a workers’ compensation matter, that a plaintiff’s immigration status and work authorization bears direct relevance to her loss of future earnings and loss of earning capacity. In Reinforced Earth Co. v. Workers’ Comp. Appeal Bd., 810 A.2d 99, 108 (Pa. 2002), the Pennsylvania Supreme Court specifically announced “the loss of earning power” of a non-citizen, who entered the United States unlawfully and who did not otherwise have authorization to work in the United States, was “caused by his immigration status, not his work-related injury.” 

Since Reinforced Earth, Pennsylvania courts have handed down rulings consistent with the notion that “an [undocumented worker] without current, valid USCIS work authorization, is not legally available for work” and, consequently, cannot recover damages for loss of future earnings. See Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600, 605, (Pa. Cmwlth. 2006). The Pennsylvania Commonwealth Court in Mora v. Workers’ Comp. Appeal Bd. (DDP Contracting Co.) elaborated on the consequences of the Reinforced Earth decision, stating:

What our Supreme Court, in effect, held [in Reinforced Earth Co.] is that loss of earning power need not be shown because it is going to be presumed that Claimant cannot work in this country and there can be no way to measure his/her earning power. Even though, in this case, Claimant found other illegal employment, that position cannot be used as a measure of earning power because only employers who fail to follow the federal immigration laws can offer him a position.

845 A.2d 950, 954, (Pa. Cmwlth. 2004) (emphasis added).

Further muddying the waters, the Pennsylvania Supreme Court has now adopted Pennsylvania Rule of Evidence 413 (effective as of October 1, 2021), which provides, in relevant part: “In any civil matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the action, or to show bias or prejudice of a witness pursuant to Rule 607.” The rule, as worded, appears to indicate that evidence of a litigant’s immigration status should be admissible in a case involving a claim for future wage losses. 

Still, there is a dearth of appellate guidance as to: 

1. whether such evidence would be permitted to be introduced to a jury prior to its rendering a decision on liability; 
2. the precise meaning of the phrase “an essential fact to prove an element of, or a defense to, the action”; 
3. whether a jury should be limited in calculating such losses to consideration of evidence of the prevailing wage rates in the undocumented litigant’s home country; and 
4. whether a jury may consider evidence an undocumented migrant is facing deportation proceedings or imminent deportation. 

In light of the indeterminate state of Pennsylvania law, effectively defending against such future wage loss claims involving undocumented workers will necessarily require extensive and strategic written discovery, careful factual investigation, effective deposition questioning and tactics, close monitoring of sister-state jurisdictions for persuasive authority and added guidance, and (likely) significant pre-trial motion practice. 

Jack is a member of our Casualty Department and works in our Philadelphia, Pennsylvania, office. 

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_{Defense Digest, Vol. 30, No. 3, September 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}