Super Lawyers
William C. Altreuter

Friday, October 05, 2012

What the hell, a post about law for a change of pace. New York Labor Law § 240 is a statute that makes property owners and general contractors strictly liable to construction workers in certain types of accidents. The owner or general contractor can, in turn, seek indemnification from the worker's employer under two circumstances. If there is a contract that provides that the employer must indemnify the owner (or G. C.) then that will be enforced. In the alternative, if the injured worker has sustained a "grave injury" as defined by the Worker's Compensation Law, then the owner (or G.C.), then the owner (or G.C.) can seek "common law indemnification".

Comes now New York Hosp. Med. Ctr. of Queens v Microtech Contr. Corp., in which the property owner seeks contribution from the injured employees' employer on the grounds that the employer "failed to verify the immigration status of the subject employees and that this failure constituted a violation of the Immigration Reform and Control Act of 1986 (8 USC § 1324a). The argument was, more or less, that the IRCA prempts the New York's Worker's Compensation law. Nice try, but no dice. It is pretty well established that undocumented aliens can recover lost wages or collect Workers' Compensation benefits for personal injuries sustained on the job. If the IRCA does not preempt Comp under those circumstances, the Second Department reckons it doesn't in this case either. Interestingly, it is not clear from the opinion that the injured employees were actually out-of-status. The case was decided on a motion to dismiss rather than on a motion for summary judgment. Would the outcome have been different if a record had been built establishing that the employer's hiring practices were negligent and created a risk of harm to the property owner that was different from what otherwise might have been contemplated? I can picture what that record would look like-- it would have a contract that specifically provided that the employer would conform with all state and federal statutes and regulations including, specifically the IRCA; and that all employees would be known to the employer to be competent and capable. Then the record would show that there was no vetting process by the employer in hiring-- that every morning the foreman went to Home Depot and hired whoever was there. Then there'd be some showing that there was no effort on the part of the employer to train the employees on safety matters. (This set of facts, by the way, is the set we pretty much saw in roughly seven out of ten § 240 cases back before the grave injury standard was passed-- basically in every case that didn't involve union employees.) On those facts I think you might persuade a court that the owner was entitled to the protections of the IRCA, but you'll have a tougher row to hoe doing it now.

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