Can Undocumented Workers Receive Compensatory Damages in the Form of Back and Front Pay?
By: Taylor P. Young
Many of the litigators and public officials we work with at The Red Maple Group are involved in litigation or economic analyses where undocumented workers are the heart of the matter and where monetary damages are sought. According to a slightly old 2016 Pew Research Center Report, New Jersey ranks third in the country in the percentage of undocumented workers to the total population in the state. Considering the density of undocumented workers in New Jersey, it is not uncommon to work in litigation, specifically where personal injury, wrongful termination, discrimination, and shareholder oppression involve an undocumented worker and or family.
In the following paragraphs, I summarize a few significant cases that can guide undocumented workers and their families as they pursue economic damages. Undocumented works are indeed eligible to receive damages, but restrictions have been made regarding what kind of damages they can collect.
Workers Compensation
New Jersey allows undocumented workers to have the benefits of Workers’ Compensation.[1] However, undocumented workers are not provided benefits to economic programs like unemployment.[2] Harbeck, and collegues (2013) write,
Undocumented alien workers in New Jersey are entitled to non-economic benefits if they are injured on the job. They are not entitled to back pay or front pay because they are not lawfully entitled to work. Thus, providing access to workers’ compensation is not in conflict with the Supreme Court’s interpretation of the NLRA in light of the IRCA.[3]
Despite not having access to front or back pay, undocumented workers have access to non-economic damages or workers’ compensation after a worker related injury. An individual who has proper documentation to work in the U.S. will be allowed access to both back and front pay when it comes to a lawsuit for a work-related injury or death. Similarly,
Consistent with the Supreme Court’s holding in Hoffman, New Jersey has held that one may not recover for lack of access to employment in which one is not authorized to partake, but one may utilize a statutory scheme[4] to make one whole again where one has been injured in the course of employment.[5]
This quote suggests that New Jersey is following the previous Supreme Court decisions that state, as to what and when, undocumented workers are entitled to economic damages. There are many cases in both the Superior Court of New Jersey and the United States Supreme Court that has set precedents regarding the damages allowed to be collected by undocumented workers who are injured during work.
In the case of Hoffman Plastic Compounds, Inc v. National Labor Relations Board (NLRB), the court decided the NLRB does not have the discretion to award backpay to an undocumented worker who is not legally allowed to work in the United States. An employee of Hoffman, Jose Castro, was employed under the impression that he was legally allowed to work in the U.S. but after being laid off and suing Hoffman for violating the NLRA, it was made clear that Castro had provided fraudulent records to prove his work status. The opinion of the Hoffman case states,
… particularly its express limitation of backpay to aliens ‘lawfully entitled to be present and employed in the United States’… Castro was never lawfully entitled to be present or employed in the United States, and thus, under the plain language of Sure-Tan, he has no right to claim backpay.[6] (Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 2002, p. 8).
The Supreme Court in Hoffman finishes by saying, “We therefore conclude that allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in the IRCA.”[7]
In Crespo v. Evergo Corporation the Superior Court of New Jersey argued that undocumented workers will only receive non-economic damages. Rosa Crespo was suing her employer on a violation of New Jersey’s Law Against Discrimination (LAD) for wrongful termination. During the discovery it was found that the social security card Crespo provided was fraudulent, which makes her ineligible to work in the U.S. But the ruling in Crespo states, “Even after Hoffman, courts in other states have held that IRCA does not preclude illegal aliens from receiving workers’ compensation benefits.”[8] The ruling states that even though Crespo is not eligible to work in the U.S. she is still allowed to collect the benefits from workers’ compensation.
[1] Hon. Dorothy A. Harbeck, I. J., M. Michelle Park, J. D., Rachael L. Dizard, J. D., & Karen M. Mainieri, M. S. (2013). Emerging From the Jungle: New Jersey Workers' Compensation and Workers Without Lawful Immigration Status. eRepository @ Seton Hall. https://scholarship.shu.edu/shlj/vol37/iss2/3/. P.277
[2] Ibid.
[3] Ibid.
[4] Statutory scheme refers to workers’ compensation.
[5] Ibid.
[6] Rehnquist, W. (2002, March 27). HOFFMAN PLASTIC COMPOUNDS, INC. V. NLRB. Legal Information Institute. https://www.law.cornell.edu/supct/html/00-1595.ZO.html.
[7] Ibid.
[8] Crespo v. Evergro Corporation. FindLaw. (2021). https://caselaw.findlaw.com/nj-superior-court-appellate-division/1163635.html.