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NEW YORK COURTS GRANT LOST WAGES TO UNDOCUMENTED WORKERS

Recently, the Second and Third Departments of the Appellate Division have issued decisions which narrow the application of Hoffman Plastic Compounds v. National Labor Relations Bd., 535 US 137 [2002], a 2002 United States Supreme Court decision which held that an undocumented worker who had been wrongfully terminated for participating in union activities could not recover back pay because he had used fraudulent documents to obtain his employment.

Last month, in Matter of Amoah v. Mallah Mgt., LLC, 2008 NY Slip Op 08228, the Third Department held that an injured illegal immigrant who used an acquaintance's documents to obtain work was nonetheless entitled to receive lost wages under New York's Workers' Compensation Law. And last week, in Coque v. Wildflower Estates Developers, Inc., 2008 Slip Op 08698, the Second Department held that an injured illegal immigrant could recover lost wages under New York's Labor Law even though he had presented fraudulent documentation in securing employment.

The two courts relied on different reasoning in reaching their decisions. In Coque, the Second Department held that the worker was entitled to lost wages because the employer was not induced to hire the worker based on the fraudulent documentation and also had not fulfilled its duties. In Amoah, however, the Third Department argued that Hoffmandid not apply because the worker in that case was not physically injured. Of the two decisions, Amoah is broader and grants more rights to illegal workers.

The New York Law Journal heralds these decisions as clarifying illegal workers' rights to lost wages, but it should be remembered that they are intended to encourage employers to perform "due diligence" before hiring workers and to verify that they have legal documentation.

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