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New Jersey District Court Joins Second Circuit in Permitting Illegal Alien to Sue for Lost Wages


The United States District Court for the District of New Jersey has joined other federal courts ruling that an illegal alien could assert a claim for lost wages in a personal injury case. The New Jersey District Court issued its decision in Igor Kalyta, et al v Versa Products, Inc., et al. The Second Circuit Court of Appeal has previously ruled that loss wages is a claim illegal immigrants could make in a personal injury context. However, the Third Circuit Court of Appeals which governs New Jersey has NOT ruled on the issue as yet.


The issue of lost wages by illegal immigrants is relevant in the context of the Immigration Reform and Control Act of 1986, 8 U.S.C Section 1324a (IRCA). The IRCA is a comprehensive scheme prohibiting the employment of illegal aliens in the United States. The United States Supreme Court has ruled that the IRCA bars back-pay for an illegal alien who files a wrongful termination claim.


In Kalyta, the plaintiffs sought damages for past and future lost wages as a result of a personal injury suffered at work. Kalyta, therefore, addresses the issue of lost wages by a person NOT authorized to work in the U.S. in a personal injury context.


Kalyta came to the United States in a student visa but instead of attending school, he started working for a satellite installation company. He sustained injuries when he fell from a ladder that he was using to install a satellite dish. He seeks $4.5 million in his settlement demand, $1.5 million was for lost wages.


Relying on the IRCA the Defendants sought to have Kalyta’s lost wages claim dismissed. The District however, ruled that Kalyta could maintain his lost wages claim despite the fact that he was NOT authorized to work in the United States at the time of his injury.


In Madeira, the Second Circuit concluded that where (1) the wrong being compensated is personal injury, conduct not authorized by the IRCA; (2) it was the employer and not the worker who violated IRCA by arranging for employment; and (3) the jury was instructed to consider the worker’s removability in assessing damages, New York could, consistent with IRCA, allow an injured worker to be compensated with lost earnings at United States pay rates


The Second Circuit thus, distinguished the Supreme Court ruling that denied an undocumented alien back pay for termination of employment by stating that personal injury resulting in lost wages is different.


The New Jersey District Court followed the reasoning of the Second Circuit Court of Appeals though it was NOT bound to. There are still disagreements in District Courts in other jurisdictions as to undocumented worker could recover lost wages as a result of a personal injury. Thus, the issue is NOT yet fully resolved.


At the moment courts that have permitted the claim has distinguished between lost wages for personal injury and wages claims for wrongful termination,. Further, courts have looked at whether the undocumented worker engaged in a fraud upon the employer to obtain employment.