Undocumented Workers in Indiana Have Claim for Lost Future Wages

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Laura D. Francis

Undocumented workers in Indiana can recover damages for their diminished earning capacity as a result of a workplace injury, and their immigration status isn’t likely to come up at trial.

The Indiana Supreme Court held May 4 that undocumented immigrants have a right under the state’s constitution to recover such damages ( Escamilla v. Shiel Sexton Co. , 2017 BL 149124, Ind., No. 54S01-1610-CT-546, 5/4/17 ). Not only that, but evidence of their immigration status isn’t admissible in court unless the party that wants to present the evidence can prove the immigrant is likely to be deported.

To show that someone will more likely than not be deported is a “pretty tough burden for them to meet,” attorney Alexander Limontes of the Law Office of William W. Hurst in Indianapolis told Bloomberg BNA May 5. The immigrant basically “has to be in deportation proceedings at the time,” and “very few” of the more than 11 million undocumented immigrants in the country are, he said.

Indiana joins a majority of states that say undocumented workers can recover lost wages in U.S. dollars and a “significant number” of states that say evidence of immigration status is inadmissible in this type of personal injury case, Limontes said. He wrote a friend-of-the-court brief in support of the undocumented worker in the case on behalf of the Indiana Trial Lawyers’ Association.

‘Not an Immigration Case’

“This is a tort case, not an immigration case,” Limontes said. The state Supreme Court’s decision should reduce the “distraction” caused by the intricacies of someone’s immigration status, instead focusing juries in these cases on the injury and how it should be compensated, he said.

The case involved an undocumented masonry laborer, Noe Escamilla, who was permanently injured while working on a baseball stadium. He sued general contractor Shiel Sexton Co.

The trial court allowed evidence of Escamilla’s immigration status and excluded the testimony of his expert witnesses—who calculated his diminished earning capacity—because they hadn’t accounted for his immigration status.

A split Indiana Court of Appeals held that Escamilla could recover for diminished earning capacity but that evidence of his immigration status could be admitted at trial if he claimed lost U.S. wages and there was “any risk” that he’d be deported.

Employee of Subcontractor

Shiel Sexton “fully supports the Court’s finding that Indiana Courts are open to everyone, without exception,” General Counsel Kristin L. Altice told Bloomberg BNA May 5. “The remainder of the Court’s opinion addresses evidentiary issues which we leave to the lawyers to debate and the judges to decide,” she said.

Escamilla was never Shiel Sexton’s employee, Altice said in an email to Bloomberg BNA. Rather, he was employed by Masonry By Mohler, the subcontractor on the project, she said.

Escamilla can’t sue his employer under Indiana’s workers’ compensation laws, so he sued Shiel Sexton, Altice said. Masonry By Mohler is “required to defend and indemnify us for their negligent acts and omissions,” according to the terms of the contract, she said.

The case is being handled by Masonry By Mohler’s insurer, she said.

Looking Forward, Not Back

It’s important that the Indiana court distinguished the U.S. Supreme Court case in Hoffman Plastic Compounds Inc. v. NLRB, Thomas Ruge of Lewis & Kappes in Indianapolis told Bloomberg BNA May 5. That case held that undocumented workers can’t get back pay under the National Labor Relations Act.

“Looking backwards is different,” said Ruge, who filed a friend-of-the-court brief supporting Escamilla on behalf of the Indiana Chapter of the American Immigration Lawyers Association. Future wages, and future immigration status, are more speculative, he said.

It’s unlikely that the new standard for admitting evidence of immigration status will cause employers to report undocumented workers to immigration authorities to avoid damages.

Doing so, Ruge said, is “calling into question their own employment practices” and whether they knowingly hired an undocumented immigrant—which can get employers in trouble.

There’s “always a risk” of deportation, Limontes said. But there are 11 million undocumented immigrants living in the U.S., and most deportations involve immigrants who committed crimes or were encountered at the border, he said, so the chances are low.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law