We previously reported on the employment of alien workers in two Welby, Brady & Greenblatt, LLP Legal Alerts.
The first report1 discussed the New York Court of Appeals ruling in the Balbulena Case 2, where the court ruled that an injured undocumented alien worker, who did not tender false work identification documents to obtain employment, could sue for lost wages under the state Labor Law. The employer in that case failed to verify whether the worker had any work authorization documentation. We posed the question to our readers whether they knew if their general liability insurance policies would cover them in an injured undocumented alien worker situation.
The second report3 discussed the Immigration Reform and Control Act of 1986 (“IRCA”). The IRCA prohibits employers from knowingly hiring non-citizens who are not authorized to be in the U.S. Employers are required to verify the identity and work eligibility of all employees, including U.S. citizens, by completing Department of Homeland Security Form I-9. Workers who fail to comply with the instructions on Form I-9 cannot be hired. Employers who do not comply with IRCA are subject to administrative fines and criminal prosecution. I-9 forms are available on the internet. Once completed, I-9 forms are kept by the employer and must be made available for inspection by authorized government officials from the Department of Homeland Security, the Department of Labor, and the Office of Special Counsel for Immigration-Related Unfair Employment Practices. Employers may but are not required to photocopy the identification document(s) presented by the worker when the I-9 form is completed. If photocopies are made they must be kept by the employer with the I-9 form.
More recently the courts have considered what happens when an employer hires an alien worker who submits false identification and work eligibility documents and is injured while working.
In New York, a worker’s submission of false documentation is sufficient to shield the employer from the injured workers claim for lost wages provided the employer was induced by the false documentation to hire that worker.
In the Coque Case4, the injured worker submitted a false social security card to the employer, who accepted the document and hired the worker. The employer, however, did not follow the instructions accompanying the I-9 form. Where a social security card is offered by a worker, the I-9 form instructions require a second valid form of identification. Because the employer failed to ask for the second form of identification, the Court ruled that the employer had not fulfilled its duty to verify the employee’s documentation and therefore the employer was not falsely induced to employ the worker despite the submission of false documentation. Thus, the illegal alien worker could recover damages for lost wages resulting from the workplace injury.
In the Macedo Case5 a worker presented the employer with a driver’s license, a union card, a tax ID card and what turned out to be a false social security card. Months after the worker was injured while working, the employer completed the I-9 form. Because of the employer’s tardiness in completing the I-9 form, the Court ruled that the employer was not induced to hire the worker by his presentation of a false social security card and the injured worker could recover damages for lost wages.
These court decisions send a clear message to employers. For an employer to avoid liability for lost wages sought by an injured illegal alien worker, the employer must show that it was induced to hire that worker based upon his or her presentation of false identification and work eligibility documents. To do that the employer must establish that when it hired the worker it promptly completed the I-9 form and that it followed all of the instructions describing the type of documentation that must be presented. The employer should also consider keeping a copy of the document(s) presented when the I-9 form is completed.
Further, as demonstrated by the Macedo Case where the worker presented a union card, just because you may run a union shop, don’t think you are immune from verifying the worker’s eligibility for employment. Check your Collective Bargaining Agreement. Does the union verify the work eligibility of the workers it sends to your projects?
So what should you consider doing to protect your business?
First, develop an employee identification and work verification program and include it as part of your overall employment manual - and follow it. Your attorney can help you put together an employment manual if you do not already have one or need to update it. Also, promptly verify the eligibility of all your employees by completing an I-9 form for each and be sure to follow the instructions specifying the identification documents your workers are required to present to establish identity and employment authorization. Maintain the I-9 form and copy of the identification documents in your file for that employee.
Second, speak with your insurance agent about your general liability insurance policy. Find out whether it covers you against alien workers lost wages claims. Find out whether your general liability policy has requirement(s) for completing I-9 forms for your workers and fulfill the requirements of your policy.
This alert provides general information only. It is not intended to provide legal advice. We encourage you to contact an attorney should you desire to discuss specific situations for which you may need legal advice.
1 Legal Alert ‐ Volume 1, #4 (Found at Welby Brady & Greenblatt, LLP’s website, www.wbgllp.com)
2 Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 812 N.Y.S.2d 416 (2006)
3 WBG Legal Alert – Volume 1, #8 (Found at Welby, Brady & Greenblatt, LLP’s website, www.wbgllp.com)
4 Coque v. Wildflower Estates Developers Inc., 58 A.D.3d 44, 867 N.Y.S.2d 158 (2nd Dept. 2008)
5 Macedo v. J.D. Posillico Inc., 68 A.D.3d 508, 891 N.Y.S.2d 46 (1st Dept. 2009)