The Limitation on Undocumented Workers’ Lost Earnings After Balbuena and Sanango: Crafting a Fair and Principled Balance of Immigration Policy and New York State Labor Law § 240 Safety Goals

In December 2004, in a pair of cases, the Appellate Division, First Department, held that under state labor and tort laws, injured workers who are not legally permitted to be present or employed in the United States are only entitled to receive lost earnings reflecting what they could have earned in their country of origin. This article explores these First Department decisions by first discussing the federal statutory and decisional backdrop against which the cases arose. This article then provides a discussion of the First Department cases and the competing economic incentives they implicate. Finally, this article posits that a more appropriate balance of federal immigration law and New York State Labor Law § 240 policy is a rule that holds an employer (or other party) liable for an undocumented worker’s lost wages only when that employer (or other party) knew or should have known of the worker’s immigration status