The law with respect to the recovery of lost wages by undocumented workers injured in accidents at construction sites in New York is gradually evolving. In the landmark decision, Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 812 N.Y.S.2d 416 (2006), the Court of Appeals held that such wage claims are generally permissible. However, there were issues raised in Balbuena which are now being addressed in more detail by the courts.
In Balbuena, the Court of Appeals established that undocumented workers not legally authorized to work in the United States at the time of injury are not precluded from recovering lost wages in personal injury litigation. The Immigration Reform and Control Act (IRCA) does not preempt state laws regarding the permissible scope of recovery in personal injury actions based upon state labor laws. The Court determined that the New York Labor Law applies to all workers, regardless of immigration status.
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