Entitlement of Undocumented Aliens to State Employment Remedies in the Shadow of Immigration Policy

I.          Introduction

Under current immigration laws the unsanctioned entry in the United States is a crime and those who have entered unlawfully are subject to deportation.[1]  Aliens that are able to evade the lawful channels of immigration system and obtain employment in New York can be entitled to state remedies available to any lawful plaintiff.  Undocumented alien entitlement to compensation based on New York backpay and future earnings, notwithstanding the immigration status, throws a challenge to immigration policies promulgated by Congress in the Immigration and Nationality Act[2] (hereinafter INA), as amended by Immigration Control and Reform Act[3] (hereinafter IRCA).  When politically charged issue of immigration collides with a heated issue of labor the controversial eruption is inevitable.  With “war on terror,” economic troubles and most recently healthcare, being the most pressing issues of the time, Congress is unlikely to draw a clear demarcation line between jurisdictional overlap of the federal immigration and state employment laws.  Acutely divided along the partisan lines our legislative branch would not willingly pick a hot potato that is relatively small in scope.  Without clear congressional guidance, nation’s state and federal judiciary faced a challenging task of reconciling state remedies with federal immigration laws.  In New York, resorting to the doctrine of conflict preemption, state’s highest court – Court of Appeals – decided that absent the document fraud, immigration laws are ancillary to the question of state workplace safety and employment laws, and may be considered by jury in issuing the award.[4]  The optional requirement left New York jury to wonder whether to calculate lost future wages based on the likelihood an illegal alien will obtain work authorization through proper immigration channels, or the likelihood that alien will continue to evade immigration enforcement and for how long.  The decision of New York highest court, also supported by the Second Circuit Court of Appeals,[5] rests on weak foundation and reflects politically charged immigration debate.  Court of Appeals ought to reconsider its decision in favor of a more balanced and policy neutral approach, such as one developed by courts in California.[6]  California judges treat the immigration question on par with employment safety question deciding plaintiff’s residency status as the preliminary question of law.  The remedy award is directly affected by the immigration status of a plaintiff.  Remedy calculation is based on the home country future earnings if compliance with immigration laws would require his deportation, while retaining California future earning potential rate, if plaintiff’s compliance with immigration law would permit him to remain in the United States.  California methodology gives a great deference to immigration policy while retaining the prerogative of the state to adjudicate and issue remedies according to its own laws.  While California adjudicative practice is not binding on New York, it ought to be a persuasive instrument.  Issues of state workplace safety and federal immigration laws touch upon constitutional principles of state traditional powers[7] and federal Supremacy Clause[8] respectively.  Because the remedy issue is one of constitutional dimension, courts ought to conform to interpretative methodology articulated by the U.S. Supreme Court Justice Taney:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.[9]

Justice Taney methodology principles, pronounced over 150 years ago, have not been explicitly challenged to this day.

II.        Federal Conflict Preemption Doctrine: to the extent that valid labor remedies, arising from violation of federal labor laws, conflict with immigration law, the immigration law prevails           

The New York remedy policy for undocumented aliens was formed in the shadow of the U.S. Supreme Court decision in Hoffman Plastic Compounds v. NLRB[10] (hereinafter Hoffman).  In Hoffman, the U.S. Supreme Court decided whether an immigrant employee, who obtained his employment though fraudulent documents and was in the country illegally, is entitled to a wrongful discharge compensation in a form of backpay.  The underlying issue was a clash of two federal statutes: National Labor Relations Act[11] (hereinafter NLRA) with IRCA.  National Labor Relations Board (hereinafter “the Board”) found Hoffman employer-defendant in violation of NLRA and ordered, inter alia, a backpay award to wrongfully discharged former employees. One of these employees was an unauthorized alien.[12]  In light of a wrongful discharge, clearly in violation of NLRA, how can Hoffman employer-defendant issue a backpay award to an unauthorized alien not entitled to work in the first place?  The question split the U.S. Supreme Court 5-4, majority deciding that NLRA impermissibly infringed on IRCA, while dissent concluded that both statutes can coexist alongside one another.

Hoffman dissent viewed majority decision as one infringing upon NLRA and the Board’s remedial power. Without monetary penalties in a form of backpay awards Hoffman dissent reasoned that the Board would be left only with injunctive remedies, arguably an ineffective deterrent for labor violations.  Hoffman majority viewed the Board’s backpay as an undue infringement on IRCA, where injunctive remedies are sufficient to refute the employers’ anti-NLRA conduct.  Hoffman dissent saw majority decision as undermining both NLRA and IRCA policies, while majority portrayed the backpay to illegal immigrants as a tacit approval by the Board to violate IRCA policies.  Dissent’s argument was portrayed through economic lenses: the unavailability of backpay damages would send a message to employers that NLRA violations would not carry monetary penalties, and therefore can be violated “at least once with impunity.”[13]  NLRA regulates federal standards for minimum wages, overtime, and prohibitions against discrimination practices.  Employers facing mere possibility of injunction and interpreting Hoffman majority message that there is a category of employees who would never be able to obtain a backpay or any remedy, would lack the incentive to pay undocumented aliens federal minimum wages or overtime.  For these reasons, the incentive to hire unauthorized aliens would be increased, thereby achieving opposite result from one immigration policy sought to establish.  The economic argument would subsequently be used by lower courts as one of major points to distinguish themselves from Hoffman.

Hoffman was about a conflict between two federal laws.  The opinion did not provide a clear guidance of whether similar principles ought to be applied to labor laws on the state level.  The lack of guidance created an Appellate Division split in New York.  First Department adopted a Hoffman standard, holding that “an alien who has not obtained work authorization is precluded by Hoffman from claiming lost wages derived from income earned in the United States, but may seek wages based on income that could be earned in the alien’s home country.”[14]  Second Department limited Hoffman to its facts, holding that “state tort law is not preempted by federal immigration law because neither federal statutes nor Hoffman prohibit an undocumented alien from recovering lost wages in a personal injury action.”[15]  New York Court of Appeals, ultimately siding with Second Department, went to great lengths to distinguish Hoffman in Balbuena v. IDR Realty LLC[16] (hereinafter Balbuena).

III.       Hoffman Legacy for New York Labor Laws

Balbuena agreed with economic argument made by Hoffman dissent.  Application of NLRA to undocumented aliens on the same basis as to lawful employees serves as an economic disincentive to hire aliens solely on the basis of “substandard” conditions.  Balbuena took the economic argument a step further pronouncing that NLRA helps to assure the wages and employment conditions of lawful residents are not adversely affected by competition from their illegal counterparts.[17]  Thus, Balbuena concluded that the “enforcement of NLRA as to undocumented aliens is . . . clearly [emphasis added] reconcilable and serves the purposes of the immigration laws,”[18] holding that under IRCA, it is not a crime for illegal immigrants to work without authorization, so long as the employment was not procured through false documentation.[19]

Noting that a “state statute is void to the extent that it actually conflicts with a valid federal statute,”[20] and that “[a] conflict will be found where . . . state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,”[21] Balbuena ought to consider congressional objectives outlined by Hoffman.  With respect to federal immigration policy, congressional objectives include: deemed unavailability for work during any period when illegal alien is not lawfully entitled to be (1) present and (2) employed in the United States;[22] reinstating worker not authorized to reenter the United States is tantamount to rewarding a violation of the immigration laws;[23] backpay is only limited to aliens lawfully entitled to be present and employed in the United States (conversely, any alien who is not lawfully entitled to be present and employed in the U.S. may not claim backpay);[24] awarding backpay to illegal aliens runs counter to policies underlying IRCA;[25] finding employers willing to ignore IRCA and hire illegal workers triggers IRCA violation (i.e. mere triggering is sufficient to act contrary to congressional policy).[26]  General policy statement by Hoffman is that backpay to illegal aliens would unduly trench upon IRCA prohibitions critical to federal immigration policy.  Backpay awards encourage evasion from immigration authorities, condone prior violations of immigration laws, and encourage future violations.[27]  Balbuena did not accept Hoffman interpretations of congressional objectives and rendered a decision allowing backpay awards to certain undocumented workers.

Balbuena court focused on traditional power of the state to enact and enforce laws concerning employment health and safety, turning the issue into question of federalism.  Unlike Hoffman, where immigration law prevailed in the clash with federal labor law on the issue of backpay awards, Balbuena issue turns on whether federal immigration policy entrenches on the state power to regulate wages and safety at the place of employment.

Hoffman already noted that immigration law does come in conflict with labor laws.  Hoffman’s general holding is that backpay awards to illegal aliens would unduly trench upon federal immigration policy.  Although the decision was made in the context of National Labor Relations Board authority, the focus was not on who [emphasis added] issues a backpay award, but the effect of the backpay award to undocumented aliens on the federal immigration policy.  According to Hoffman backpay awards not only trivialize the immigration laws, but condone and encourage future violations.[28]  While Hoffman decision was made in the context of federal labor policy,  the proposition was so broad that the state labor policy would be foreseeably affected.  Indeed, when the U.S. Supreme Court proclaims that backpay awards not only trivialize the immigration laws, but condone and encourage future violations, it is difficult to argue that the U.S. Supreme Court meant only federal backpay awards condone immigration laws, while state monetary awards neither trivialize, nor condone immigration laws.  Hoffman suggested a guideline test: had the immigration authorities detained illegal alien, or had the illegal alien obeyed the immigration law and left the United States, would that alien be deemed to have lost his right to backpay?  Unlike Balbuena, which differentiates between those who obtain employment through fraudulent documentation and those who seek out employers willing to ignore IRCA verification requirements, Hoffman focuses on those acts that trigger new IRCA violations.  Unauthorized alien[29] seeking employment in the United States, irrespective of means sought to obtain that employment, automatically triggers IRCA violations.  Rather than focusing on federalism, Balbuena should have focused on the question presented: whether award to an unauthorized alien in the form of backpay or any other pay procures compensation for work done in violation of federal immigration policy, thereby triggering violations IRCA sought to prevent, particularly the employment of unauthorized aliens in the United States.

Balbuena goes to great lengths to distinguish Hoffman holding.  Borrowing heavily from the economic argument of Hoffman dissent and placing question of federalism in the center of controversy, Balbuena spins Hoffman in a way that five U.S. Supreme Court majority justices would not have probably foreseen.  Balbuena reconciles the settled principle of foreclosing civil recovery “if the plaintiff’s conduct constitute[s] a serious violation of the law,”[30] with impermissibility of plaintiff’s presence in the country under federal law.  According to Balbuena, recovery is foreclosed only in the cases pertaining to illegal work, not the illegal worker, citing Spivak v. Sachs[31](hereinafter Spivak), Berg v. Wilpon[32] (hereinafter Berg) and Murray v. Interurban S. R. Co.[33] as an authoritative precedent.  Balbuena incorrectly applied cited precedent.  Spivak dealt with California licensed attorney who was convicted of practicing law in New York without New York license.  As in Balbuena, where undocumented alien worked in construction, in itself a lawful activity, the practice of law is also a lawful activity, provided one has the authorization.  Like Spivak, where plaintiff was required to obtain authorization from New York Bar (or the court for pro hac vice appearance) before practicing law, Balbuena plaintiff was required to obtain authorization from the United States Citizenship and Immigration Services (hereinafter USCIS) prior to beginning his employment in the construction industry.  If Balbuena is to follow Spivak, who was denied fees for legal services, the undocumented plaintiff should be denied recovery for his injuries as well.   Berg, another authority cited by Balbuena, involved a plaintiff who did not have a real estate broker’s license and was therefore barred from collecting a fee for his endeavors.  While assisting in real estate transactions is a lawful activity, it requires a broker’s license.   Spivak and Berg cases stand for proposition that a plaintiff is precluded from recovery if engaged in a lawful activity which requires authorization, if the plaintiff fails to obtain proper authorization.[34]  Balbuena plaintiff is required to obtain employment authorization from USCIS, an agency administering and enforcing IRCA, or the Attorney General.[35]  Failure to obtain employment authorization, precludes an alien from engaging in otherwise lawful activity of construction work.  Accordingly, an unauthorized alien is precluded from recovery under the doctrine established by Spivak and Berg.

While excluding illegal worker, not the illegal work, is a prerogative the New York Court of Appeals may exercise, the court offers no justification with respect to violation of illegal stay in the country.  Balbuena dismisses illegal stay violation in one sentence: “Standing alone, however, this [illegal presence in the United States] is insufficient to justify denying plaintiffs a motion for damages to which they are otherwise entitled.”[36]  The only “justification” for ignoring the federal law, was the lack of precedent in the state law.  It is unpersuasive rationale the “trivializes the immigration laws” by way of ignorance.  Hoffman is permeated with notion that an illegal alien does not have the right to recovery because the recovery stems from violation of immigration laws by virtue of illegal stay in the United States.  Illegal stay and violation of federal immigration laws are inextricably linked.  Illegal alien could not have been injured had he complied with immigration laws and remained outside of the country.  Balbuena noted that “neither IRCA, nor any other federal or state statute makes it a crime to be an employed but undocumented alien, unless the alien secured employment through the use of false work authorization documentation.”[37]  However, if the undocumented worker crossed the country illegally in pursuit of employment, that worker has committed a crime in furtherance of his or her objectives.[38]  Focusing only on one criminal aspect of the immigration law,[39] Balbuena also ignores the main principle of conflict preemption it itself stated in early in the opinion: “a state statute is void to the extent that it actually conflicts with a valid federal statute.  A conflict will be found . . . where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”[40]  The illegal presence in the country and unauthorized employment are federal law violations that go hand in hand.  Backpay award to undocumented aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy.  Balbuena focus on criminal fraud aspect of immigration policy ignores the interpretation of the immigration policy by the ultimate interpreter of the federal law, and diminishes a doctrine of conflict prevention under the Supremacy Clause.

IV.       Application of Hoffman in the Second Circuit

Second Circuit picked up Hoffman legacy in Madeira v. Affordable Housing[41] (hereinafter Madeira) the same year Balbuena was decided.  The issue in Madeira was whether immigration law preempts state law, which allows undocumented workers to recover compensatory damages for lost earnings.  Madeira appellants argued that in order for immigration law to coexist with state employment policies, the injured should be granted compensatory damages, but only based on his native country rates, rather then the U.S. based rates.  According to Madeira appellants, since the injured undocumented worker is in the country illegally, permission of recovery infringes on immigration policy under Hoffman.  Madeira court rejected appellants argument giving deference to state law, notwithstanding court’s assertions that the federal preemption of the state law is the federal question.[42]  Due to preliminary rejection of recovery based on alien’s native country rates, Madeira deprived itself of the very solution that would bring federal immigration laws and state employment safety laws into harmonious existence.  Madeira failed to see that the solution to the conflict lies in the administration of laws, not the laws themselves.  Electing to focus on the whole package – state law and federal laws as a whole – Madeira had no choice but to follow Balbuena steps and defend its decision with weak unpersuasive justifications.

Since Madeira was decided in the shadows of Balbuena, Second Circuit made an attempt to distance itself from Balbuena decision on the basis of federal question.  Federal preemption of the state law is the federal question.  Notwithstanding its “independent” review, Second Circuit decided that compensation to an injured undocumented worker under state law does not contradict IRCA, so long as certain conditions are met.[43]  Like Balbuena, Madeira focuses on criminal fraud.[44]  The fraud factor is taken out of the context because it is the merely one factor among four considered by Hoffman.  Hoffman declined to award backpay award because (1) employee was illegal alien, (2) did not perform work for which award was issued, (3) wages could not lawfully been earned, and lastly (4) work was obtained by a criminal fraud.[45]

Madeira is quite persuasive in an attempt to invalidate Hoffman interpretative methodology in light of state law adjudication under the doctrine of field preemption.  Since the issue deals with reconciliation between state and federal law, as opposed to two federal statutes, the demonstration of implied intent is not enough.  Appellant bears the burden of showing that congressional intent to supersede state laws is “clear and manifest.”[46]  Since Madeira appellants argue that IRCA preempts state employment statutes, administration of which have been traditionally occupied by the states, appellants must show clear manifestation that IRCA intended to prevent state powers of employment law administration.  While persuasive, the argument pertains to the doctrine of implicit field preemption.  Under the doctrine of implicit conflict preemption, a party must show that “state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”[47]  Thus, the discussion ought to be viewed in the context of conflict preemption doctrine.

Madeira echoes Balbuena discussion of implicit conflict preemption doctrine, albeit in more explicit terms .  The court drew a two step qualification analysis.  First, Madeira addressed the issue of whether compliance with both New York labor law and IRCA is a physical impossibility.  Second step dealt with a question of New York labor law being an obstacle to the accomplishment and execution of the congressional IRCA objectives.[48]  According to Madeira, there is no implicit conflict preemption under the two step test.

In one short paragraph Madeira concludes that statutes governing workplace safety do not depend on compliance with federal immigration laws.[49]  Absolute compliance with both, (1) IRCA’s prohibition of undocumented aliens and (2) state law mandated safety practices, is only possible if there are no undocumented aliens employed.  Madeira dealt specifically with undocumented alien.  The alien was undocumented because he made a choice not to comply with IRCA requirements.  Had the alien complied, there would be no issue to be decided before the court.  Madeira conclusion based on the theoretical possibility is akin to a circular argument: both laws ought to physically coexist alongside, but because they do not coexist, the court is called upon to decide the question presented.  Reluctantly, one must concede to theoretical argument because “the mere fact of ‘tension’ between federal and state law is generally not enough to establish an obstacle supporting preemption, particularly when the state law involves the exercise of traditional police power.”[50]  Hence, the first step is taken out in one short paragraph.  In discussion of the second step, Madeira focuses on the potential conflict caused by allowing remedies to undocumented aliens.  Madeira breaks down permissible and impermissible remedies along the spectrum.  On the extreme end is the impermissible remedy of reinstatement, where the state compels the reinstatement of undocumented worker to its former place of employment.  While employment reinstatement is not the issue before the court, it is symbolically important as the court acknowledges the area where IRCA trumps state laws under implied conflict preemption doctrine.  The other end of spectrum is the minimum wage violation of FLSA, where it is lawful to require an employer to pay an undocumented alien the minimum wages for labor actually and already performed.  Justifying rationale for the latter is that past IRCA violations should not preclude undocumented aliens from receiving compensation for performed labor as it would provide undue advantage to employer-violators.[51]

According to Madeira,[52] Hoffman precedent dictates that conflict is to be found where an injury (e.g. termination) not authorized by one statute is required by another.  Madeira is quick to distinguish on facts Hoffman precedent, based on (1) employee’s own criminal conduct and (2) the question concerning only federal laws.  However, Hoffman criminal fraud prong was merely one non-dispositive point among three others.[53]  The question of federalism, while persuasive under the doctrine of field preemption, is not sufficiently strong under conflict prevention because the doctrine does not require congressional “clear and manifest” expression.  As such, Madeira’s labeling of criminal conduct and federalism as critical factors[54] is weakly substantiated.  Rather, Madeira should have considered those “critical” factors that were plainly stated in the Hoffman opinion: (1) employee was illegal alien, (2) did not perform work for which award was issued, (3) wages could not lawfully been earned, and as Madeira correctly admits, (4) work was obtained by a criminal fraud.[55]

Madeira acknowledges that compensation award for an injury to undocumented alien under state laws implicitly presumes that “but for the worker’ injury, the unlawful employment relationship would have continued.”[56]  Therefore, Madeira should conclude by its own legal principle earlier stated[57] that presumption of continued employment does not deal with the past but seeks a remedy for present and future.  But Madeira turns to a different direction.  Notwithstanding the fact the Madeira’s issue pertains to matter of federal law the Second Circuit surveys country-wide state law decisions.[58]  Relying on state courts the Second Circuit concludes that “uniform application of workers’ compensation serves the interests of both federal and state law.”[59]  While “mindful” that rationale[60] for these “interests” was proffered and rejected in Hoffman,[61] Madeira nonetheless follows Balbuena footsteps[62] and limits Hoffman to its facts.  Madeira distinguishes Hoffman for the same reasons that Balbuena had done: the undocumented worker committed no criminal act, and the issue involves tension between the state and federal laws.  On this shaky ground, Madeira carves out a set of legal principles, finding that no federal-state conflict exists, where (1) the undocumented alien has committed no IRCA crime, (2) where the employment relationship originates in the employer’s knowing violation of IRCA duties, and (3) where the wrong being compensated is a personal injury not authorized by IRCA under any circumstances.

While accepting and even promulgating the economic argument of New York Court of Appeals, Madeira rejects the prospect of contrary argument: if one would allow recovery for injury to illegal aliens, then the law would encourage immigration.  Citing Hoffman dissent, Madeira suggests that such an argument is a mere speculation and need not be decided on the appeal.  It follows then, the economic argument where denial of remedies to injured undocumented workers would create an incentive to violate IRCA by affording preference to illegal aliens because it is means to avoid cost of work related injuries is not [emphasis added] a speculative argument.  The core principle of economic argument – allowance of recovery reinforces compliance incentive of the employer, which in turn discourages low cost labor competition – has been accepted by both Balbuena and Madeira.  Neither Balbuena, nor Madeira discuss any concrete evidence that economic argument is not a mere speculation that merits dismissal.  No concrete data, scientific findings, or expert witnesses or any other evidence was discussed in both opinions.  Judges offered no factually specific rationale to substantiate the economic argument as legally sound and not speculative.  Without such analysis, judges invite readers to conclude that presumptions and legal authority are not applied consistently but rather as a matter of convenience.

Madeira proposes 5 reasons that are rooted in the weak foundation of proclaimed principles.[63]  First is the question of conduct, where state compensation award would not subvert IRCA policies.  Second is “non-violation” of IRCA by undocumented alien due to failure of an employer to follow through verification requirements.  The premise for both reasons is flawed because the compensation is based on the presumption of illegal stay and continued illegal employment in the United States.  The presumption is contrary to “deemed unavailability” doctrine articulated by the U.S. Supreme Court in Sure-Tan, Inc. v. NLRB[64] (hereinafter Sure-Tan) and discussed by Seventh Circuit in Del Rey Tortilleria, Inc. v. NLRB[65] (hereinafter Tortilleria).  Pursuant to 8 U.S.C. § 1324a, employer is required to take steps ensuring eligibility of employees.  If the employer does not take steps to verify employees work eligibility, is it presumed that employee is not in violation, while the employer is?  Employment authorization with respect to immigrants is the exclusive domain of federal agencies.[66]  If an employer failed to follow procedures prescribed under 8 U.S.C. § 1324a, that does not relieve the employee from following the employment authorization procedures required by USCIS.[67]  Madeira deemphasizes the fact that the undocumented alien’s stay in the country is also a violation of immigration laws.  INA, as amended by IRCA, states that an alien is “deemed to be unlawfully present in the United States, if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”[68]  Therefore, presumption of continuance of illegal stay, based on which state remedial award is calculated, circumvents immigration laws from the perspective of employment authorization, as well as, turns the blind eye toward the “unlawful presence” of undocumented worker in the United States.

Third Madeira reason deals with the factual distinction from Hoffman in the party’s culpable conduct violating IRCA.  Since in Madeira a culpable party is the employer, while in Hoffman a culpable party is employee (for the purposes of IRCA violations), the cases are factually distinct.  Again, Madeira misreads Hoffman, which explicitly stated that its decision is viewed through “wider lenses.”[69]  Distinguishing Hoffman based a narrow reading of 8 U.S.C. § 1324a is an unpersuasive analysis.

The fourth reason deals with the question of fault.  Madeira, citing New Hampshire Court of Appeals[70] as persuasive authority concludes that recovery should be permitted because the wrongful conduct – the illegal employment relationship and personal injury – are not attributable to the conduct of an undocumented alien.  The court is silent to the undocumented alien’s willful violation of immigration laws by virtue of illegal entry and stay in the U.S., as well as circumvention of federal authority by failure to apply for work authorization.  It can equally be argued that but for undocumented worker’s compliance with immigration laws, the injury would not have occurred.  Conversely, if the injury had occurred while the worker was in compliance, state compensatory damages would not be infringe on federal immigration policy.

Madeira fifth reason is the instruction that allows juries to consider the alien’s status in calculating compensation.  Madeira admits that the notion of award itself carries the presumption of continued IRCA violation.[71]  The very presumption that Madeira condoned earlier in the opinion,[72] the court pronounces as acceptable because it is not “direct and positive” obstacle to attainment of IRCA policy in itself.[73]  The presumption goes against “deemed unavailability” principle, where an employee must be deemed unavailable for work during any period the employee was not lawfully entitled to be present and employed in the United States,[74] and therefore ought to be invalidated.

Madeira did not conduct a truly independent review of the federal question.  High degree of deference was given to state interpretation of the federal law.  Justifications were weakly founded and in the context of deemed unavailability doctrine even contradictory.  Concurring judge in Madeira made no secret about frustration and difficulties in rendering the opinion.  Suggesting that conflict between state safety laws and immigration policy would be diminished if juries were instructed to “calculate lost future wages based on the likelihood that the illegal alien will obtain authorization to work, rather than the likelihood that the illegal alien will evade immigration enforcement agencies,”[75] dissenting judge sought answer in administration of remedies which explicitly conform to both conflicting laws.  While Madeira concurrence looked in the right direction, the proposed solution is deficient because jury is ill equipped to handle complexities of immigration law.  It should rather be an exclusive domain of the judge to resolve immigration status as a preliminary question of law prior to having jury decide on the question of remedy.

V.        Kline Balancing Approach

The best approach is the one that reduces judicial activism to the minimum and works its way out to base its decision on the precedent and reason. A “paradoxical decision” in words of a concurring Judge Walker, where “Congress has left it to judges to make policy decisions”[76] should be made in a way that affects other laws least.  Where no precedent is available and the Congress offers no solution, the approach should have minimal impact on federal and state laws.  This in not the first time when the court was invited to make a decision on a controversial issue, nor it is the last.  Drawing on past experience of our judicial history, in cases such as these, words of Justice Taney ought to be in the shadow of the ruling judge.[77]

Hoffman decision revolved around four critical factors: (1) employee was illegal alien, (2) did not perform work for which award was issued, (3) wages could not lawfully been earned, and (4) work was obtained by a criminal fraud.[78]  Balbuena and Madeira give a substantial weight to the absence of criminal fraud, and distinguish themselves from Hoffman largely on that basis.  The important question nevertheless remains as to whether remedies can be provided in way where state tort law have less or no tension with federal immigration policy.

Work related remedies, whether state or federal, conflict with immigration laws if they do not take into account that “employees must be deemed ‘unavailable’ for work . . . during any period when they were not lawfully entitled to be present and employed in the United States.”[79]  Allowing jury to consider plaintiff’s immigration status as a factor in determining award does not reconcile with a principle of deemed unavailability.  Award calculation based on “likelihood that the illegal alien will obtain authorization to work,”[80] also conflicts with deemed unavailability.  How can an award be issued for deemingly unavailable plaintiff?  “An alien, who had no right to be present in this country at all, and consequently had no right to employment, has not been harmed in a legal sense by the deprivation of employment to which he had no entitlement.”[81]  Yet, plain reading of deemed unavailability seems not only unduly harsh, but also as infringing on the traditional power of states to administer safety laws.  These traditional powers are rooted in the Tenth Amendment[82] of the federal Constitution and may not be preempted even by the federal laws related to workplace safety.[83]  The question of remedy to undocumented aliens is one of constitutional dimension and great care must be taken so that the Supremacy Clause is not offended in favor of powers reserved to the states.

While an individual who enters the country illegally is subject to deportation,[84] immigration laws provide for instances where one may take steps to change his deportable status.  Immigration law allows the suspension of deportation,[85] grant of amnesty[86] or asylum.[87]  Unauthorized aliens may change their status and petition to stay in the country lawfully and become eligible for lawful employment.[88]  State law should provide due deference to immigration policies.  Rather than seeking to avoid tension, judges would affirmatively pursue federalist harmony.  California judiciary demonstrated harmonious approach in Rodriguez v. Kline[89] (hereinafter Kline).  Kline held that remedies should be granted in accordance with the state law, but the amount should be calculated based on the amount of lost future earnings in the country of alien’s citizenship, unless alien demonstrates steps he or she has taken to change deportable status.  Under Kline the possibility still remains that immigration authorities would deny the change of status.  State courts are placed in a peculiar position of immigration authorities when weighing the likelihood of alien’s change of status.  The task of “weighting” adds a layer of complexity, but it is not unprecedented.  Bankruptcy courts have long been required to perform similar task of weighting to estimate payments of defendant debtors in light of a pending tort litigation.[90]  Because tort litigations may take years, estimation procedure is necessary for bankruptcy to adjudicate cases without undue delay ahead of tort litigation outcome.  Applying same laws the USCIS would apply under Title 8 of the U.S. Code, state courts are well equipped to determine whether an alien is “deemed unavailable.”  Kline adjudicative procedure goes to a great length to ensure compliance with immigration laws while respecting state’s traditional powers to administer safety laws:

[W]henever a plaintiff whose citizenship is challenged seeks to recover for loss of future earnings, his status in this country shall be decided by the trial court as a preliminary question of law. (citation omitted) At the hearing conducted thereon, the defendant will have the initial burden of producing proof that the plaintiff is an alien who is subject to deportation. If this effort is successful, then the burden will shift to the plaintiff to demonstrate to the court’s satisfaction that he has taken steps which will correct his deportable condition.

If the court’s decision following this hearing is in the plaintiff’s favor, then all evidence relating to his alienage shall be excluded and his projected earning capacity may be computed upon the basis of his past and projected future income in the United States. Should the defendant prevail, then evidence of the plaintiff’s future earnings must be limited to those he could anticipate receiving in his country of lawful citizenship.[91]

The consideration of immigration policies in calculation of award signifies manifestation of deference to federal laws.  State administers its own laws in non-confrontational manner that is unlikely to offend immigration policy under Supremacy Clause.  State promotes immigration policy by rewarding compliant plaintiffs with the U.S. based computations.  At the same time, states also reach their own objectives of administering laws to which they are constitutionally entitled.

The Kline approach conforms to Hoffman principles.  The fact that employee was an illegal alien and therefore deportable is given deference to immigration laws through judicial review as a question of law.  If alien can demonstrate to satisfaction of a judge that his status will change, he would establish his entitlement to possibility of lawful earning.  After alien met that burden the remedy could be calculated in conformity with state practices and in compliance with state laws.  If undocumented alien did not meet the burden, and therefore is deemed deportable, the calculation of award based on the home country income, where wages could be lawfully earned, still achieves state goal of employment safety administration, while meeting “deemed unavailability” requirement.

Kline may be challenged on two grounds.  First, if an employee has no right to be present in the United States, and therefore cannot work, that employee lacks standing.  Second, if court awards damages for lost wages and future earnings to an unauthorized alien based on alien’s home country, that award would be too small to serve as a deterrence for employers to comply with state safety laws.

The first point invites tension with the Equal Protection clause under Fourteenth Amendment.  No State may deny any person equal protection of laws.  “Any person” includes aliens that are in the United States unlawfully.[92]  Protections of state safety laws, as well as common law of tort cause of action must be extended equally to any person, including undocumented aliens.  Holding to the contrary is tantamount to a denial of equal protection of laws under Fourteenth Amendment.  Objectives of proposed remedial practices are to avoid legal tensions.  The “standing” challenge not only augments tensions, but also raises questions of unconstitutionality.  Therefore, the first challenge is a weak foundation.

With respect to the second point, if plaintiff sues under common law tort, then it is the policy of a tort common law system that is dispositive.  The goal of torts is to return the plaintiff to the pre-injury state through compensation.  When monetary award is given to an alien plaintiff based on the future earnings at his native country, it is presumed that he will comply with immigration laws and return to his home country.  The typically smaller award furthers the immigration policy by providing financial incentives to move back.  Although the earning potential of the illegal alien is lower in his home country, the cost of living tends to be lower as well.

An argument can be made that limiting lost wages claim by an injured undocumented alien would lessen an employers incentive to comply with state labor and safety laws.[93]  States, however, can counter-balance the lessened incentive though other measures, including the increase in fines and penalties, or injunctive measures such as revocation of business license.  In the context of federal law, Hoffman concluded that cease and desist orders, and notices to employees advising of their rights is a significant deterrent against future violations.[94]  State has police powers to administer and enforce workplace safety laws, and can hold accountable those who violate them.  Remedies in the form of backpay and future earnings arise from primarily personal injury actions concerned with relieving aggrieved party rather than punishing tortfeasor.  As such, remedies can serve as one tool among many to discourage employers from workplace safety violations.

VI        Conclusion

New York state and federal jurisprudence limited Hoffman decision largely to its facts.  The rejection to extend application of federal remedial provisions to a state cause of action stems from concern that a federal law unduly infringes on the traditional state powers.  Hoffman majority opinion is vague enough, while Hoffman dissent is vocal enough to allow New York judicial system provide remedies to injured undocumented workers, so long as their employment have not been obtained through fraud.  New York courts would permit remedies based on the U.S. income, allowing juries to consider the status of undocumented worker as a factor.  As Balbuena demonstrates, jurors tend to return the award largely based on the U.S. income.  New York allow remedies based on the U.S. income in the name of furthering immigration policy.  Influenced by Hoffman dissent , New York courts believe that the U.S. based awards arising out of workplace safety violations deter employers from substandard labor practices and discourage the employment of undocumented workers.  Extending Hoffman rejection of remedies to an undocumented worker may unduly infringe on the state power to administer safety laws.  On the other hand, Balbuena and Madeira leave the immigration question in the province of jurors.  Declining to treat alien’s status in the remedy award as a preliminary matter of law only augments a conflict between state labor law and immigration.  To resolve conflicting outcome courts ought to perform a balancing test akin to Kline.  Under Kline the immigration status is treated as a preliminary question of law which affects evaluation of remedies.  If an alien is “deemed unavailable” then remedies are calculated based on the country of alien’s citizenship. An alien who demonstrates the prospect of lawful stay in the country is entitled to remedies based on the U.S. projections.  The approach considers both immigration laws and state’s interest in administration of safety laws.  Although Madeira had an opportunity to adopt Kline balancing test, the approach was rejected under pressure of New York Court of Appeals ruling in Balbuena.  The U.S. Supreme Court has yet to say whether courts are required as a matter of law to consider compliance with immigration laws as a prerequisite for award determination.