The Immigration Debate: Can Undocumented Workers Recover
Lost Wages in Personal Injury Suits?

By Benny Agosto, Jr. and Robert Rodriguez

It is the classic scenario. The plaintiff, an undocumented worker, is injured at work. A negligence lawsuit follows. The question to be answered is whether the plaintiff, as an undocumented worker, is entitled to lost wages resulting from the workplace injury. Although this issue has been the subject of debate and controversy, courts have been clear that undocumented migrant workers who are injured can sue for lost wages.

The Backdrop: Immigration Today
In 2000, an estimated 7 million illegal immigrants were living in the United States.1 This figure grew by approximately 350,000 persons each year thereafter.2 Presently, the number of illegal immigrants living in the United States is close to 12 million. Illegal immigrants from Mexico account for about 5.3 million of the total illegal immigrants living in the United States,3 with an additional 170,000 legally entering this country each year.4

We should not be content with laws that punish hardworking people who want only to provide for their families . . . It is time for an immigration policy that permits temporary guest workers to fill jobs Americans will not take, that rejects amnesty, that tells us who is entering and leaving our country, and that closes the border to drug dealers and terrorists. – President George W. Bush.5
Our nation has been strengthen-ed by generations of immigrants who became Americans through patience and hard work and assimilation. In this new century, we must continue to welcome immigrants, and to set high standards for those who follow the laws to become a part of our country. — President George W. Bush.6

President Bush’s comments reflect the important role illegal immigrants are currently playing in the United States economy. The average illegal immigrant family pays more than $4,200 in annual federal taxes,7 while earning less than the average annual salary of $36,700.00.8 Fifty to 85 percent of the country’s 1.6 million farm workers are illegal immigrants.9 Of the 12 million food service workers in the United States, 1.4 million are believed to be immigrants, 500,000 of them from Mexico.10 Forty percent of the workers in the New York restaurant industry are undocumented.11 Recent studies have shown illegal workers hold one in 20 civilian jobs in this country.12 Illegal immigrants from Mexico tend to be young, predominately male, struggling with the English language, and employed in construction, manufacturing and the hospitality industries.13
In the debate over national security, illegal immigration has become associated with the threat of terrorists and weapons of mass destruction entering the United States.14 Since 2001, 3,000 Border Patrol agents have been hired to stop illegal immigrants coming in from Mexico, an increase of 30 percent.15 Recently, a group called the Minuteman Project was created, whereby private citizens patrol sections of the border between the United States and Mexico.16 The Minuteman Project accuses the federal government of sleeping on the job and handing America to the law-breakers.17
Immigration bills are pending before both houses of Congress. The Senate Judiciary Committee has considered a guest-worker visa program that would create a path to citizenship for illegal immigrants that would take up to 11 years and would require that immigrants hold jobs, demonstrate proficiency in English, pass criminal background checks, and pay fines and back taxes.18 Some members of Congress claim that the bill grants amnesty to undocumented immigrants, while its supporters call it earned citizenship. Senator Jeff Sessions of Alabama went so far as to suggest that they add language to the bill stating that it should be called “No Illegal Alien Left Behind.”19 Some members of Congress advocate harsher penalties for undocumented immigrants. For example, they want to make it a felony to be in this country illegally. As such, violators would go to prison, eventually be deported to their home countries, and forever be unable to return to the United States legally under any circumstances. In reality, both sides realize a compromise will need to be made.

This is one of the greatest challenges we face in our time, securing our borders, taking 11 million people out of the shadows that are exploited every day, fulfilling the job requirements we all know are necessary to ensure the economic future. — Senator John McCain.20

Courts throughout this nation have examined, and attempted to insulate against, the risk of prejudices against a plaintiff who is an illegal immigrant. The debate over illegal immigration, however, is currently at the forefront of policy in the United States, and attorneys who represent injured illegal immigrants must be acutely cognizant of the possible risk of any resulting prejudice.

Texas Decisions Regarding Damages Awards
In Texas, evidence of a person’s alien status is not permissible to bias or inflame a jury, nor is it permissible as a bar to recapturing lost and future earnings. In Wal-Mart Stores, Inc. v. Cordova, the plaintiff, an illegal alien, brought suit after sustaining injuries while shopping.21 The plaintiff sought to recover for her injuries and her lost earning capacity.22 As a basis for denying loss of earning capacity, the defendant argued that the plaintiff was not a citizen of the United States and that there was no evidence that she possessed employment authorization to legally work in the United States.23 The El Paso appellate court rejected this argument, stating that Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for loss of earning capacity.24 Thus, the court held that evidence pertaining to the plaintiff’s loss of earning capacity was properly before the court and supported the jury’s finding.25
Approximately ten years later, the Tyler appellate court in Tyson Foods, Inc. v. Guzman reaffirmed the Cordova decision, holding that “Texas law clearly allows for the recovery of damages for lost earning capacity, regardless of the claimant’s citizenship or immigration status.”26 Tyson subcontracted with Jerry Collum to provide labor for catching chickens at various farms for processing at Tyson’s plants. The plaintiff was one of Collum’s employees and had been working for him for nine years as a chicken catcher.27 On July 30, 1998, the plaintiff was rounding up chickens when a Tyson employee ran into him with a forklift. As a result of the incident, the plaintiff suffered spinal and nerve damage and underwent a potentially paralyzing surgery to regain some limb movement.28 He sued Tyson; following a jury trial, the trial court awarded plaintiff $745,496.41.29 On appeal, Tyson argued that the trial court erred when it refused to exclude Dr. Carl Hansen, the plaintiff’s expert witness on his lost earning capacity, because Dr. Hansen erroneously assumed that the plaintiff was legally entitled to work in the United States.30 Because the plaintiff was not a United States citizen and was not otherwise authorized to work in the United States, Tyson concluded that he was not entitled to receive any compensatory award for lost earning capacity.31 Tyson cited the recent United States Supreme Court case of Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, for the proposition that “national public policy, as expressed by the United States Congress in enacting immigration reforms, militates against any award of wages as damages to undocumented alien laborers.”32
The appellate court disagreed. First, the court reasoned that the Hoffman opinion applies only to an undocumented alien worker’s remedy for an employer’s violation of the NLRA and does not apply to common-law personal injury damages.33 Second, Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity.34 Third, the court stated that Tyson’s contention seemed to be in the nature of a federal preemption defense, which is an affirmative defense that must be raised in the trial court.35 The court of appeals found that Dr. Hansen’s opinion was not unreliable because the plaintiff was entitled to receive compensation for lost earning capacity even though he was not a citizen of the United States.36
In Commercial Standard Fire and Marine Company v. Galindo, the court considered whether evidence of a person’s illegal status would preclude his employee status as defined by the Workmen’s Compensation Act of Texas and thus prohibit his qualifying for benefits.37 The court concluded that such evidence could not be used to bar recovery, citing 42 U.S.C.A. §1981, as follows:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and ex-actions of every kind, and to no other.38

After pointing out that an illegal alien is not barred from prosecuting his action for personal injuries, the court concluded that an alien cannot be barred from benefits solely by reason of his immigrant status.39

Recent Damages Decision in New York
This damages issue has recently been addressed in New York as well. In February of 2006, the New York Court of Appeals reversed the decision of the New York State Supreme Court and held that undocumented migrant workers can sue for lost wages if hurt on the job.40 In Balbuena v. IDR Realty LLC, the plaintiff, an illegal immigrant, fell from a ramp while on the job, sustaining severe injuries that rendered him unable to work.41 Like the defendant in Guzman v. Tyson, the defendant, IDR Realty, based its arguments on Hoffman and violations of the Immigration Reform and Control Act.42 However, the plaintiff in Balbuena, unlike the immigrant in Hoffman, did not commit a criminal act under IRCA by providing fraudulent paperwork to his employer.43 Also, IRCA does not make it a crime to work without documentation.44 The court in Balbuena then reiterated that the provisions of the National Labor Relations Act, the purpose of which is to protect employees and provide remedies against illegal actions by employers, could be applied to employment practices that affect undocumented workers.45 In its holding, the Balbuena court made clear that the mere presence of undocumented workers who have not violated the IRCA is not an adequate reason to justify precluding them from recovering lost wages resulting from injuries on the job.46 Thus, the court allowed undocumented workers to recover lost wages.

Conclusion
Contrary to many lawyers’ belief, undocumented workers can sue for lost wages. Courts throughout this nation recognize the prejudice that is engendered within the term “illegal alien” and have tried to strike a balance between this prejudice and its possible relevance. Texas has made its position clear that the alien status of an injured plaintiff in a particular case has no bearing on his or her ability to make a claim for lost wages.

Benny Agosto, Jr. is a partner with the law firm of Abraham, Watkins, Nichols, Sorrels, Matthews & Friend. He is board certified in Personal Injury Trial Law. Agosto is president of the Mexican American Bar Association of Texas and is a member of the Texas Supreme Court Advisory Committee. He also chairs the editorial board for the Texas Bar Journal, is the co-editor in chief of the Hispanic National Bar Association (HNBA) Journal of Law & Policy, and is on the editorial board of the State Bar Litigation Section Reporter, The Advocate. Agosto is a frequent lecturer and speaker in areas of litigation throughout the state.

Robert Rodriguez is a graduate from the Thurgood Marshall School of Law and is a law clerk with the Law Offices of Rene Rodriguez.

Endnotes
1. Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000, Office of Policy and Planning U.S. Immigration and Naturalization Service, 1. See also Todd Dayton, The New World, America’s Borders in an Age of Terrorism, available at http://journalism.berkeley.edu/ ngno/reports/newworld/immignumbers .html. See also Benny Agosto, Jr., Can the Injured Migrant Worker’s Alien Status Be Introduced at Trial? 30 T. Marshall L. Rev. 383 (2005). 2. Id. 3. Jeffrey S. Passel, Randy Capps & Michael Fix, Undocumented Immigrants: Facts and Figures (Jan. 12, 2004). 4. From 1999 to 2003, the U.S. government legally admitted an average of 172,632 immigrants per year. U.S. Citizenship & Immigration Services, available at http://uscis.gov/graphics/shared/aboutus/statistics/IMM03yrbk/ IMMExcel/Table03D.xls. 5. Daniel Borunda, Immigrant Policy Mentioned; Bush Too Vague Some Say, El Paso Times, February 3, 2005, at 2A. 6. George W. Bush, Speech on border security and immigration reform in Arizona, Davis-Monthan Air Force Base (November 28, 2006). 7. Staff Editorial, Higher Education for All, Cavalier Daily via U-Wire, February 16, 2005. 8. Dave Montgomery, Mexican Immigrants Open to Guest-Worker Program, Survey Finds, Fort Worth Star–Telegram, March 3, 2005. 9. Sergio Bustos, Bill Would Give Legal Status to Undocumented Farm Workers, Gannett News Service, February 11, 2005. 10. Milford Prewitt, Immigration Reform Push Offers Relief for Job Woes; Legislative Agendas Revived Despite Lingering Terrorism Worry, Nation’s Restaurant News, August 16, 2004, at No.33, Vol. 38, p. 1. 11. Id. 12. Gebe Martinez, Illegal Workers Hold 1 of 20 Civilian Jobs, Research Says, Houston Chronicle, Washington Bureau, March 7, 2006. 13. Dave Montgomery, Mexican Immigrants Open to Guest-Worker Program, Survey Finds, Fort Worth Star–Telegram, March 3, 2005. 14. Lisa Friedman, License Ban Tacked on Bill, Inland Valley Daily Bulletin (Ontario, CA), March 19, 2005 (“Advocates of the license ban, sponsored by Rep. James Sensenbrenner, R-Wis., maintain that keeping legal identification documents away from those in the United States illegally is a border-control measure that will thwart terrorists from entering the country.”); see also, National Journal Group Inc., SECURITY: Border-patrol Strategy Encompasses ‘Full-court Press,’ National Journal’s Technology Daily, April 6, 2005. 15. George W. Bush, Speech on border security and immigration reform in Arizona, Davis-Monthan Air Force Base (November 28, 2006. 16. David Solana, American Revelation, Daily Illini via U-Wire, March 31, 2005; See also, Pete Prince, Bush Gets it Right with Immigration Policy, University Daily Kansan via U-Wire, January 24, 2005. 17. Id. 18. Karen Tumulty, Should They Stay or Should They Go, Time Magazine, April 2, 2006, at 30, 32. 19. Senator Jeff Sessions, Senate Floor Statement, Washington, D.C., March 29, 2006. 20. Rachel Swarns and John O’Neil, Senate Vote on Immigration Close, Frist Says, The New York Times, April 6, 2006. http://www.nytimes.com/ 2006/04/06/ washington/06cnd-immig.html?_r=1&ex=1144728000&en= 1445bf51a4e535b3&ei=5087&oref=login. 21. 856 S.W.2d 768, 769 (Tex. App. — El Paso 1993, writ denied). 22. Id. 23. Id at 770. 24. Id at 771; see also Tyson Foods, Inc. v. Guzman, 116 S.W.3d 233, 244 (Tex. App. — Tyler 2003, no writ). 25. Cordova, 856 S.W.2d at 771. 26. Tyson Foods, Inc., 116 S.W.3d at 244. See generally, Bustos v. Able Crushed Concrete, No. 01-01-00075-CV (Tex. App.-Houston [1st District] Oct. 17, 2002, no pet.) (not designated for publication), 2002 WL 31319905 (plaintiff was convicted of forgery for using a false social security card but waived any error when he referred to the conviction himself in his opening statement to the jury). 27. Tyson Foods, Inc. at 236–37. 28. Id. at 237. 29. Id. 30. Tyson Foods, Inc., 116 S.W.3d at 242. 31. Id. at 243. 32. Id. 33. Id. at 244. 34. Id. 35. Id. 36. Id. 37. 484 S.W.2d 635, 636 (Tex. Civ. App. — El Paso 1972, writ ref’d n.r.e.). Section 406.092 of the Workmen’s Compensation Act of Texas provides as follows: (a) A resident or nonresident alien employee or legal beneficiary is entitled to compensation under this subtitle. (b) A nonresident alien employee or legal beneficiary, at the election of the employee or legal beneficiary, may be represented officially by a consular officer of the country of which the employee or legal beneficiary is a citizen. That officer may receive benefit payments for distribution to the employee or legal beneficiary. The receipt of the payments constitutes full discharge of the insurance carrier’s liability for those payments. 38. Id at 637. 39. Id. 40. Mark Johnson, Court Says Illegal Workers Can Sue for Lost Wages, Newsday.com, February 21, 2006. 41. 2006 N.Y. Lexis 200; 2006 NY Slip Op 1248, (N.Y. Feb. 21, 2006); see also Peterson v. Neme, 281 S.W. 2d 869 (Va. 1981); Hagl v. Jacob Stern & Sons, Inc., 396 F. Supp. 779 (E.D. Pa. 1975); Clemente v. State, 707 P.2d 818 (Cal. 1986); Klapa v. O &Y Liberty Plaza Co., 645 N.Y.S. 2d 281 (N.Y. Sup. Ct. 1996); Gonzalez v. City of Franklin, 403 N.W.2d 747 (Wis. 1987); Melendres v. Soales, 306 N.W.2d 399 (Mich. Ct. App. 1981). 42. Id. 43. Id. 44. Id. 45. Id. 46. Id.

Text is punctuated without italics.

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