December 2008

New York Supreme Court’s Appellate Division recently held that an illegal immigrant who was paralyzed after a 25 foot fall from makeshift scaffolding at his construction job could recover lost wages from his employer despite his submission of false employment documents. In Coque v. Wildflower Estate Developers Inc., Justice A. Gail Prudenti stated that “a worker's submission of false documentation is sufficient to bar recovery of damages for lost wages only where that conduct actually induces the employer to hire the worker.” She clarified this rule by explaining that employer is not induced to hire a worker where the employer “knew or should have known of the worker's undocumented status or failed to verify the worker's eligibility for employment as required by federal legislation.” Wildflower Employee, Coque, was eligible to recover lost wages despite admitting that he is undocumented and submitted a fake Social Security card at the time he was hired. The Court held Coque was eligible to recover lost wages because his employer failed to properly verify his identification documents when filling out his I-9 and also violated the Immigration Reform and Control Act by verifying only Coque’s Social Security card and did not require any additional documentation. This ruling further expands employer liability regarding proper I-9 completion and the employment verification process. Given this ruling and the existing penalties for non-compliance, employers must take stock of their exposure, conduct internal audits and may need experienced compliance counsel to guide them through this complicated area of the law.

As always, GT will keep you up to date on important immigration compliance issues.