Rosa v. Partners in Progress, Inc.

Decision Date04 March 2005
Docket NumberNo. 2004-232.,2004-232.
Citation868 A.2d 994,152 N.H. 6
CourtNew Hampshire Supreme Court
Parties Wudson ROSA v. PARTNERS IN PROGRESS, INC. and another. Wudson Rosa v. United Rentals, Inc.

Gottesman & Hollis, P.A., of Nashua (Paul M. DeCarolis on the brief and orally), for the plaintiff.

Desmarais, Ewing & Johnston, PLLC, of Manchester (Scott A. Ewing on the brief and orally), for defendant Partners in Progress, Inc.

Getman, Stacey, Schulthess & Steere, P.A., of Bedford (John A. Curran on the brief and orally), for defendant Wrenn Associates, Inc.

Friedman Gaythwaite Wolf & Leavitt, of Portland, Maine (Karen Frink Wolf and Heidi A. Bean on the brief, and Ms. Wolf orally), for defendant United Rentals, Inc.


These consolidated cases are before the court on interlocutory transfer without ruling. Sup.Ct. R. 9.

The record reflects the following facts. The case involves the construction of a Wal-Mart store in Manchester and the purported status of the plaintiff, Wudson Rosa, as an illegal alien. Defendant Wrenn Associates, Inc. (Wrenn) was hired by Wal-Mart as the general contractor of the construction project. Wrenn subcontracted the painting of the Wal-Mart building to defendant Partners in Progress, Inc. (Partners). Partners in turn subcontracted the task of painting the exterior of the building to Eagle General Laborers (Eagle). On December 9, 2000, the plaintiff, a Brazilian citizen and an employee of Eagle, was injured while working at the Wal-Mart construction site when an aerial lift, owned and rented by defendant United Rentals, Inc., tipped over and fell on him.

On December 26, 2001, the plaintiff brought a civil suit against the defendants for damages resulting from his injuries, which included a claim for lost earning capacity measured at United States wage levels. Prior to trial, the defendants filed motions arguing that the plaintiff should be prohibited from making a claim for lost earning capacity, or that the trial court should limit the scope of his claim. The plaintiff, on the other hand, filed motions arguing that evidence concerning his immigration status should be excluded from the trial because it is of limited relevance and unfairly prejudicial.

The Superior Court (Groff , J.) transferred the following questions: (1) "Is the plaintiff permitted to introduce evidence and make a claim of lost wage/earning capacity when he is not legally entitled to work in the United States at the time of his accident?"; (2) "If he is entitled to bring a claim for lost wage/earnings [sic ], should those be limited to earnings that he could anticipate receiving in his country of full citizenship?"; and (3) "To the extent a lost wage/earning capacity claim is introduced, are the defendants entitled to introduce testimony of the plaintiff's immigration status and the fact that he was not legally entitled to work in this country as evidence to rebut the damage claim?"

Each issue in this case presents a question of law of first impression for this court. We begin by addressing the first transferred question. The defendants argue that the plaintiff should be completely precluded from bringing a claim for lost earning capacity. We disagree.

"[A] well established body of law holds that illegal aliens have rights of access to the courts and are eligible to sue therein to enforce contracts and redress civil wrongs such as negligently inflicted personal injuries." Mendoza v. Monmouth Recycling Corp., 288 N.J.Super. 240, 672 A.2d 221, 225 (1996) (quotation omitted); see also Arteaga v. Literski, 83 Wis.2d 128, 265 N.W.2d 148, 150 (1978) ("There is no public policy that is served by refusing access to our courts to illegal aliens who are injured through the negligence of another."); Janusis v. Long, 284 Mass. 403, 188 N.E. 228, 231-32 (1933) ; Martinez v. Fox Valley Bus Lines, 17 F.Supp. 576, 577 (N.D.Ill.1936).

We see no reason to separate an illegal alien's claim for lost earning capacity from the umbrella of other claims that he may make under tort law, for "[s]urely the effect on the worker of his injury has nothing to do with his citizenship or immigration status." Mendoza, 672 A.2d at 224. Therefore, we answer the first transferred question in the affirmative.

We next address the second transferred question. The defendants argue that even if an illegal alien may bring an action for lost earning capacity, that capacity may not be measured by what the illegal alien could have earned, but for his injury, unlawfully working in the United States. Rather, the defendants argue, the lost earning capacity must be measured by what the illegal alien could have earned lawfully working in his country of origin. While we agree that, in most circumstances, the defendants are correct, there are some circumstances in which an illegal alien's lost earning capacity may be measured by what he could have earned in the United States.

The defendants base their argument, in part, upon the United States Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002), and decisional law that has followed. In Hoffman , the Court overturned an award of back pay to an illegal alien who had been unlawfully discharged by his employer in violation of the National Labor Relations Act (NLRA). Hoffman, 535 U.S. at 152, 122 S.Ct. 1275. In reaching its decision, the Court relied upon the apparent conflict between an award of back pay and the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a (2000), which is "a comprehensive scheme prohibiting the employment of illegal aliens in the United States." Hoffman, 535 U.S. at 147, 122 S.Ct. 1275.

IRCA established "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 ...." Id. (citations and quotation omitted). "IRCA mandates that employers verify the identity and eligibility of all new hires by examining specified documents before they begin work. If an alien applicant is unable to present the required documentation, the unauthorized alien cannot be hired." Id. at 148, 122 S.Ct. 1275 (citation omitted).

"Similarly, if an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker's undocumented status." Id. "Employers who violate IRCA are punished by civil fines ... and may be subject to criminal prosecution...." Id. (citations omitted). "IRCA also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents." Id. "It thus prohibits aliens from using or attempting to use any forged, counterfeit, altered, or falsely made document or any document lawfully issued to or with respect to a person other than the possessor for purposes of obtaining employment in the United States." Id. (quotations omitted). "Aliens who use or attempt to use such documents are subject to fines and criminal prosecution." Id.

The Supreme Court pointed out:

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.


The Court held that "awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the [National Labor Relations] Board has no authority to enforce or administer. Therefore, ... the award lies beyond the bounds of the Board's remedial discretion." Id. at 149, 122 S.Ct. 1275. The Court concluded that "allowing the Board to award backpay to illegal aliens would unduly entrench upon explicit prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations." Id. at 151, 122 S.Ct. 1275. The Court suggested that to hold otherwise would allow the Board to award back pay "for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud." Id. at 149, 122 S.Ct. 1275.

In his dissent, Justice Breyer, joined by Justices Stevens, Souter and Ginsburg, argued that failing to award back pay to an illegal alien unlawfully fired by an employer who knew of his status would encourage employers to hire illegal aliens because it would "lower[ ] the cost to the employer of an initial labor law violation." Id. at 155, 122 S.Ct. 1275. The dissent pointed out that, among other things, the majority's decision addressed an award to an illegal alien who had obtained his job by submitting fraudulent documents, and argued, "Were the Board forbidden to assess backpay to a knowing employer-a circumstance not before us today ...-this perverse economic incentive, which runs directly contrary to the immigration statute's basic objective, would be obvious and serious." Id. at 155-56, 122 S.Ct. 1275.

Courts that have addressed whether Hoffman affects an illegal alien's ability to recover lost United States wages under state law have produced inconsistent results. In Veliz v. Rental Service Corp. USA, Inc., 313 F.Supp.2d 1317 (M.D.Fla.2003), the federal district court relied upon Hoffman to hold that a laborer's undocumented alien status precluded an award of lost United States wages, where the record reflected that the laborer "unlawfully subverted IRCA's enforcement mechanism [by] tendering fraudulent identification to obtain employment." Veliz, 313 F.Supp.2d at 1335-36. Similarly, in Hernandez-Cortez v....

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1 books & journal articles
  • Undocumented Workers and Lost Future Earnings
    • United States
    • Colorado Bar Association Colorado Lawyer No. 43-11, November 2014
    • Invalid date
    ...defendants made no showing that the plaintiff presented false documentation, in violation of IRCA); Rosa v. Partners in Progress, Inc., 868 A.2d 994 (N.H. 2005) (refusing to bar recovery of lost earnings where the employer was aware that the employee was an undocumented worker at the time t......

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