News and Events

Undocumented Aliens on the Jobsite

January 21, 2011Related Practice Areas: Construction

Is your company being sued by an undocumented alien? It is not as rare an occurrence as many would expect. The United States Supreme Court has ruled that illegal aliens have a constitutional right of access to the courts.
 
It is quite possible that your company is being sued by someone whom you may not even know is here illegally.  There are means by which an undocumented alien can obtain "credentials" which make it appear that the individual is in fact "documented" and here in this country legally. It is not uncommon for such an individual to assume the identity of a United States citizen, typically one who has recently died. The undocumented alien may use this person's social security number, name, date of birth, and other personal information.
 
While the U.S. Supreme Court has ruled that an undocumented alien has a constitutional right of access to the courts, this does NOT mean that these individuals are entitled to the full measure of damages otherwise available to a citizen or immigrants legally present here. In a personal injury action filed by an injured construction worker, often the most significant component of damages available is lost wages. This is due in large part to the high hourly rate these individuals can earn, along with substantial union benefit packages. You should be aware that you may be able to obtain partial summary judgment on the lost wage claim if you are being sued by an illegal alien. Key to this analysis is the United States Supreme Court's 2002 decision in the Hoffman Plastic Compounds case. Although this was decided in an employment context, the decision has broader implications: an illegal alien has no reasonable expectation to lost wages in this country, inasmuch as he/she is subject to deportation at any time.
 
I attach a copy of a Motion for Partial Summary Judgment we filed on this issue, in a wrongful death case involving a worker who was here illegally. We prevailed on this motion, and the court barred the decedent's estate from seeking any lost wages at the time of trial. We have succeded on similar motions in other cases as well. As far as I know, this issue has not been squarely addressed by any reviewing court in this state.
 
Note that this is not an argument available only in Illinois. It is, or should be, a valid argument in any state of the union. We know that there are some state statutes, such as the Workers' Compensation Act, which allow an illegal alien to obtain lost wage compensation. Whether statutes like this could withstand a constitutional attack is unknown. Certainly the Supremacy Clause of the United States Constitution would support an argument that a state court cannot deviate from the Supreme Court's holding in Hoffman Plastic Compounds.
 
We recently prevailed in a case of first impression in the Illinois Appellate Court on a related issue. I am attaching a copy of the court's opinion in Santiago v. E.W. Bliss Co., which was published on December 21, 2010. Mr. "Juan Ortiz" filed a product liability lawsuit against our client, which manufactured a valve on a power press. This is the only case in my career whose outcome was decided by the very first question asked at the plaintiff's deposition: "State your name and spell it for the court reporter." It turns out that "Mr. Ortiz" was actually Mr. Rogasciano Santiago. Why he decided to reveal his true name at the deposition is not known, but he or his attorney may have suspected that we were looking into the authenticity of his claimed citizenship. Following the deposition the plaintiff's attorney succesfully moved (over our objection) to amend the complaint so that it was brought under the plaintiff's actual name. We moved to dismiss the plaintiff's claim on two bases. Initially we argued that the amended complaint did not "relate back" to the original lawsuit, and was therefore barred under the statute of limitations (which had run after the original suit was filed and before the amended complaint was filed).  We also argued that the court should dismiss the complaint as a sanction for the plaintiff's attempt to commit a fraud upon the court. The trial court denied our motion to dismiss, but certifed the issue for an interlocutory appeal. Given the importance of the issue, the Illinois Appellate Court accepted the appeal. The Appellate Court ruled that the amended complaint did not relate back to the original complaint, as they were filed under different names. Further the court ruled that the facts of the case (i.e. the plaintiff's deception) could also warrant a dismissal of the complaint as a sanction.
 
At first glance this decision may seem to have only a narrow application. Obviously most undocumented aliens will not sue under a fictitious name, and then voluntarily correct that after the statute of limitations has run. But if you suspect that the plaintiff's identity may not be legitimate, you could potentially use the Santiago opinion to seek dismissal of the case after you have determined that the plaintiff is not who he or she claims to be. A telltale sign may be a plaintiff who declares that he is not seeking lost wages, even though he normally would have a claim for them. In another setting, you may learn when you seek to obtain the plaintiff's tax returns that something is amiss. The IRS may inform you that the name on the authorization does not match the social security number on file, or that there is more than one individual who has used that social security number. If this occurs, the trial court should provide the defendant with the opportunity to conduct further discovery on the issue, as it obviously could be relevant to the lost wage claim.