Disentangling Immigration Policy From Tort Claims for Future Lost Wages

1 Introduction

The history of common law torts is rife with attempts to limit damages available to plaintiffs who have successful tort claims.^[2] For the past two decades, defendants have attempted to do just that with respect to a specific category of plaintiffs – immigrants and migrants (“im/migrants”)^[3] who lack documentation.^[4] Specifically, tort defendants who are liable for injuries to im/migrant plaintiffs routinely argue that a claimant’s undocumented status forecloses damages awards for future lost earnings and earning capacity (“future lost wages”).^[5] Although courts are divided on how to handle this issue,^[6] the draft Restatement of the Law Third, Torts: Remedies (“Draft Restatement”) objects to using immigration status evidence to limit damages in tort cases.^[7] The Draft Restatement’s reasoning substantially tracks the Indiana Supreme Court’s 2017 opinion in Escamilla v. Shiel Sexton Co.^[8]

At first blush, Escamilla does not seem like a great tort case of the 21st century. What makes it a canonical decision, however, is its close examination – and, ultimately, rejection – of the incursion of federal immigration law and policy into state tort law. Escamilla demonstrates why plaintiffs’ undocumented status, alone, is insufficient to allow tortfeasors to escape paying successful tort claimants what often amounts to substantial damages. In doing so, Escamilla fortifies the deterrence and compensation functions of tort law.^[9]

The road that led to Escamilla began in 2002 with the U.S. Supreme Court’s decision in Hoffman Plastic Compounds v. NLRB.^[10] Hoffman is not a tort case and instead, concerns federal labor law claims that permit workers to recover lost wages in the form of backpay when employers retaliate against them for exercising rights to organize under the National Labor Relations Act (“NLRA”).^[11] The worker whose rights had been violated in Hoffman was undocumented. Analyzing his claims for backpay against the background of the then-recently enacted Immigration Reform and Control Act (“IRCA”), the Hoffman Court held that undocumented workers who fraudulently obtained employment did not have the right to recover backpay under the NLRA.^[12] The Court reasoned that since they lacked work authorization to lawfully work in the first place, they could not recover wages they would have been paid but for an employer’s retaliatory actions in contravention of the NLRA.^[13]

Importantly, Hoffman only addresses the issue of damages for undocumented workers under federal labor law, its holding is limited to backpay in the context of NLRA claims, and it does not consider damages for future lost wages arising from a tort action.^[14] Nonetheless, the opinion’s sweeping language tying undocumented workers’ ability to recover lost wages to the Court’s interpretation of federal immigration policy,^[15] has opened the door for courts to limit damages for undocumented people in other types of cases, including state tort claims.^[16]

Soon after Hoffman, defendants in a variety of cases – ranging from federal Fair Labor Standards Act (FLSA) and Equal Employment Opportunity Act (Title VII) claims,^[17] to state workers’ compensation^[18] and wage theft claims,^[19] to state tort claims^[20] – began to argue that Hoffman’s reasoning precluded victorious, undocumented plaintiffs from recovering all manner of damages. In the tort realm, defendants sought, and continue to seek, to bar undocumented plaintiffs’ from recovering future lost wages even though these types of compensatory damages can constitute a substantial portion of successful tort claimants’ awards.^[21] Tort defendants argue that, like the plaintiff in Hoffman, undocumented tort claimants should not be working in the country without work authorization and therefore, future lost wages violate immigration law and policy.^[22] As a result, defendants in tort actions routinely ask courts to deny undocumented plaintiffs’ future lost wages claims.^[23]

The battle surrounding undocumented tort plaintiffs’ ability to recover future lost wages has been fought on multiple fronts in both state and federal courts, many of which provide conflicting analyses and holdings. Some courts center their review on federal preemption doctrine to analyze whether Hoffman and IRCA preempt state law claims by undocumented plaintiffs for future lost wages.^[24] Others focus on whether evidence of immigration status should be permitted under evidentiary rules of relevance.^[25] Even when courts agree on issues of preemption and relevancy, they diverge with respect to what standard should be used to calculate future lost wages. Some permit weighing of immigration status when the plaintiff used fraudulent documentation to obtain past employment,^[26] some limit awards to wage rates in a plaintiff’s country of origin,^[27] some require proof that a plaintiff is more likely than not to be deported before permitting immigration status evidence,^[28] and some prohibit this evidence altogether.^[29] To confuse matters further, many of these cases rely on earlier caselaw that does not sound in tort but rather, examines claims under state employment and labor laws.^[30] This Article is the first to categorize the different strands of caselaw considering the issue of undocumented plaintiffs’ access to future lost wages, delineate the myriad standards courts have created to answer this question, and recommend one court opinion – Escamilla – above the rest.

Escamilla makes several significant contributions to the tort law canon. First, it discusses how to evaluate the impact of Hoffman on state tort law claims. Second, it provides a legal framework for determining whether, and, if so, under what circumstances, immigration status should impact future lost wages. Third, it cautions against adjudicating tort law claims within a fraught, immigration context replete with passion, prejudice and obfuscation of tort law principles.^[31] Finally, its ultimate holding – that immigration law does not preempt future lost wages claims in tort cases and that immigration status should not deprive successful tort claimants of significant damages absent specific evidence of likely deportation – upholds tort law’s twin goals of deterring risky behavior and fully compensating victims.

Understanding Escamilla and the surrounding caselaw is important in this post-pandemic moment when the country is deeply divided on immigration issues yet is home to between 10 and 11 million undocumented people who work and reside within its borders.^[32] Of these, millions work in low-wage, essential, and frontline industries, such as construction, meat-processing, and agriculture, that require intense, physical labor.^[33] When these individuals are tortiously injured, as thousands are each year, the ability to recover future lost wages becomes paramount, especially for those severely injured, because they cannot return to the same labor-intensive jobs they once held.^[34] Future lost wages are the only damages that have the potential to “compensate for the reduction in [their] ability to earn income.”^[35] Currently, an undocumented plaintiff’s ability to recover lost wages hinges on which standard among many a court will adopt to review arguments against such damages. This shifting and confusing legal landscape makes it difficult for parties to prepare tort claims and defenses in a thoughtful and competent manner.^[36] Courts and litigants would benefit from a coherently articulated and uniform standard to abide by on this issue.

Part I describes the road that led to Escamilla. It provides a brief overview of the Hoffman decision and traces the state-based labor and tort cases that rely on it. This section details courts’ differing views on how to analyze and ultimately determine undocumented plaintiffs’ claims for future lost wages. It also discusses the tension between immigration law and tort law that arises from this caselaw.

Part II evaluates the Escamilla opinion and describes its framework for determining whether undocumented claimants should recover future lost wages. It details the three-prong structure of Escamilla’s inquiry, which considers: (1) whether Hoffman preempts state tort law claims for future lost wages; (2) whether immigration status evidence is relevant to tort law claims for future lost wages and if so, how to determine if its probative value is outweighed by other evidentiary concerns; and (3) whether immigration status evidence should be permitted in a given case. In analyzing these issues, Escamilla is the first court to comprehensively disentangle federal immigration law and policy from state tort law.

Part III recommends a path forward for courts consistent with Escamilla and the Draft Restatement, but with important caveats. Specifically, it argues that state courts should engage in a detailed preemption analysis that goes one step further than that conducted in Escamilla to consider whether Hoffman preempts common law tort claims. In doing so, courts should emphasize the distinction between immigration law concerns in the employment context and the purposes of tort law, which are to compensate individuals for injuries and deter tortfeasors from dangerous behavior. Courts should also employ Escamilla’s evidentiary framework to determine that immigration status evidence may only limit future lost wages claims when tortfeasors clearly establish that a tort claimant’s lack of documentation would, in fact, result in deportation that would compromise the ability to earn future wages in the United States. In doing so, courts can avoid wholesale elimination of an entire category of damages for an entire class of persons, which in turn preserves the animating purposes behind the common law of torts. The Article, then, concludes.

2 The Road to Escamilla

Hoffman’s holding only applies to backpay awards under federal labor law. Backpay is the only monetary remedy under the NLRA, and it is calculated by looking to the amount of wages a worker would have earned from the date of unlawful termination to the date of the backpay award.^[37] Future lost wages, on the other hand, is a tort law remedy that seeks to deter tortfeasors from future wrongdoing and compensate tort victims by providing damages corresponding to wages that could have been earned if not for the injury.^[38] Although the two remedies – backpay in the labor law context and future lost wages in the tort context – are incongruent, Hoffman is the case tortfeasors rely on to argue against future lost wages awards in tort cases. For this reason, as a preliminary matter, it is important to understand what Hoffman says and does not say about undocumented plaintiffs’ ability to recover damages.

3 The Escamilla Opinion

The Indiana Supreme Court’s decision in Escamilla v. Shiel Sexton synthesizes much of the caselaw set forth above and in doing so, is the first case to provide a comprehensive framework for evaluating the issue of whether undocumented persons who are successful in their tort claims may recover future lost wages.^[115] First, it evaluates an undocumented plaintiff’s claim for future lost wages by analyzing both preemption issues as well as relevance under rules of evidence. Second, it weighs relevance against competing evidentiary concerns, and rejects the assumption that a tort victim’s immigration status will always impact that person’s future lost wages. Third, it pursues a middle path to determine admissibility of immigration status evidence that refutes the all-or-nothing conflict between Rosa and Salas and the many cases consistent with each of those holdings. Finally, by permitting undocumented tort victims to claim future lost wages, it supports tort law’s goals of compensation and deterrence.

The story behind Escamilla began when plaintiff Noe Escamilla came to the United States from Mexico as a teenager with his parents.^[116] Several years later, working as a masonry laborer on the Wabash College’s baseball stadium, Mr. Escamilla suffered a serious fall that left him permanently disabled and unable to perform masonry work.^[117] Prior to his injury, Mr. Escamilla’s labor, which was performed without work authorization, supported his wife and three young children, all of whom were U.S. citizens.^[118] When Mr. Escamilla sued the general contractor on the project, Shiel Sexton, under Indiana’s common law of negligence, Shiel Sexton argued that: “(1) Escamilla’s immigration status should bar him from recovering his decreased earning capacity; [and] (2) Escamilla’s immigration status should be admissible because … he could be deported at any time.”^[119]

The Escamilla Court initially addressed “the threshold issue of whether unauthorized immigrants can pursue a tort claim for decreased earning capacity damages.”^[120] This led the court to a two-step process – pinpointing the state law at issue and then analyzing whether IRCA/Hoffman preempted it.^[121] The court determined that Mr. Escamilla had a right to claim future lost wages in a negligence action pursuant to the Open Courts Clause of Indiana’s Constitution.^[122] That clause, which is similar to others in state constitutions nationwide, “guarantees access to the courts to redress injuries to the extent the substantive law recognizes an actionable wrong.”^[123]

Having identified the state law at issue, Escamilla next analyzes whether IRCA/Hoffman preempts it. Like Madeira, the Escamilla Court immediately focused on the fact that, “[c]ritically … Hoffman’s issue – whether federal immigration law under IRCA limited remedies for [NLRA] violations – was only about reconciling two federal statutes.”^[124] Because Hoffman did not determine whether IRCA and federal immigration policy preempts state tort law, Escamilla characterizes Hoffman as a narrow decision that does not touch on state common law.^[125] It also points out that Hoffman – because it resolved a conflict between federal immigration law and policy and federal labor law – “simply does not affect the recovery of decreased earning capacity damages, which are common-law damages under state tort law.”^[126] Importantly, Escamilla rejects the conflation of backpay damages under the NLRB, in which a plaintiff’s injury is made possible only because of the worker’s employment, with future lost wages under tort law, in which a plaintiff’s injury is due to personal harm inflicted by the intentional or negligent actions of a tortfeasor.^[127]

After its federal preemption inquiry, the Escamilla Court asked “whether unauthorized immigration status is admissible evidence for decreased earning capacity calculations.”^[128] Here, the opinion looks to Indiana’s evidentiary rules, which, like most states’ rules, deem evidence relevant when it “has any tendency to make a [consequential] fact more or less probable than without the evidence” but excludes relevant evidence when “its probative value is substantially outweighed by the danger of … unfair prejudice, confusing the issues, [or] misleading the jury.”^[129]

Determining relevance first, the court held that documentation status evidence meets the “liberal standard for relevancy” because a plaintiff’s “immigration status affects his chances of deportation and ability to work in the United States over the course of his career. A jury could factor in the probability that his immigration status would lead to deportation or an inability to work and reduce damages proportionally.”^[130]

Next, the court evaluated whether the relevance of undocumented status is outweighed by other considerations. Specifically, it asked whether introducing undocumented status evidence in a tort case would “[grow] so intricate that the disentanglement of it becomes difficult or becoming such a mass of confused data … the jury loses sight of the main issue.”^[131] This is where Escamilla is most striking because it approaches the issue in a manner unlike any other court before it – by examining the labyrinth that is current-day immigration law and policy.^[132]

Escamilla details why immigration policy in the United States should be viewed not as a monolithic construct, but as a constantly shifting landscape based on “multiple potentially competing sources.”^[133] Recognizing that “the Executive branch enjoys broad discretion in terms of who to admit into the country and who to remove from it,”^[134] the court observed “that some [immigration] policies last for decades while others change as fast as – or faster than – presidential administrations.”^[135] For instance, in 2015, the executive branch mainly prioritized for removal only those person who were convicted of crime or apprehended at the border resulting in “over 94 percent of those removed” being in one of these two categories.^[136] When a new administration took over in 2017, however, the priorities shifted wildly and significantly expanded those targeted for removal.^[137] The case also points out that executive changes to immigration policy are exacerbated by congressional sharing of federal immigration power. When there is a disagreement between them, federal courts weigh in too.^[138] This means that certain immigration policies may or may not provide people with opportunities to obtain documentation depending on which executive, congressional, or judicial decision is in place at any given time.^[139]

The court also observed that even when routes to documentation are relatively stable, determining whether a given plaintiff could obtain documentation is challenging due to “our complex and infinitely variable immigration system.”^[140] For example, Mr. Escamilla might “have a specific path to lawful permanent residency” because his immediate relatives are U.S. citizens but “even these immigration status adjustments are never simple … they are partially dependent on whether a person is ‘admissible,’ [which] … is also complex, often turning on exceptions and nuances that complicate any admissibility determination.”^[141]

For the Escamilla Court, the unpredictability of U.S. immigration policy renders undocumented status evidence confusing, especially when it pertains to a tort plaintiff’s claim for future lost wages. Asking juries to apply ever-changing and intricate immigration policies to specific plaintiffs would require “pinning down past, present, and future immigration statuses” in a climate where “[t]oday’s statistics and policies simply cannot reveal what tomorrow holds – a truth particularly relevant in the immigration context.”^[142] Moreover, due to “shifting government priorities and policies,” it would be nearly impossible for a jury to determine whether and when an undocumented plaintiff in a tort case might obtain documentation to legally continue work in the United States or be deported from it in a manner sufficient to calculate future lost wages.^[143]

Even if juries could sort through immigration laws, policies, and evidence to pinpoint how immigration status might affect a given individual plaintiff’s future lost wages, the court worried that requiring juries “to apply nuanced statistics and answer highly debatable and uncertain questions,” would result in a “collateral immigration mini-trial [that would] … invade Escamilla’s tort case” as it has “invaded this opinion.”^[144] Based on this analysis, the court declared that “flood[ing] the courtroom” with immigration-based arguments, which would necessarily include evidence of “[c]ongressional action, executive action, executive repeal, executive discretion, executive priorities, and judicial review,” would “present[] a significant risk of confusing the issues,” especially when “immigration is a tangential issue” to a case that sounds in tort.^[145]

Even though jury confusion was the Escamilla Court’s primary concern, it also considered whether undocumented status evidence would result in unfair prejudice to the plaintiff. The court observed that “[i]mmigration status does, of course, carry some risk of unfair prejudice – as courts across this country have realized … because immigration status introduces a factor into the case that might encourage the jury to dislike or disapprove of [a party] independent of the merits.”^[146] This is especially true “because illegal immigration is, for many, a sensitive issue – personally, ethically, and politically [and] can inspire passionate responses that carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation.”^[147] Based on these concerns, the court held that undocumented status evidence in tort cases also carries a high risk of unfair prejudice against the plaintiff.

Having concluded that the probative value of undocumented status evidence was outweighed by the risk of confusion and unfair prejudice, Escamilla could have issued a blanket prohibition on such evidence as many courts before it had done.^[148] Instead, it forges an alternative path between cases like Rosa that always permit evidence of undocumented status, and cases like Salas that always prohibit it.^[149] Specifically, the court held that “[a] plaintiff’s unauthorized immigration status is inadmissible unless the preponderance of the evidence shows that the plaintiff will be deported.”^[150] In doing so, the court reasoned that defendants should be allowed to introduce evidence that would, in fact, impact the calculation of an undocumented plaintiff’s future lost wages.^[151] The court cautioned, however, that there was a high bar for such evidence in order to avoid a windfall to tortfeasors in situations where the undocumented plaintiff would have continued earning U.S. wages but for the tortfeasors bad actions.^[152] Ultimately, Escamilla holds that a defendant may not introduce evidence of a plaintiff’s undocumented status without “establish[ing] that the plaintiff will more likely than not be deported.”^[153]

Escamilla’s analytical framework is instructive. First, it distinguishes labor cases, in which a plaintiff seeks redress for injury due to termination of employment, from tort cases, in which a plaintiff is injured because of a defendant’s wrongdoing. The distinction is critical because the former is governed by Hoffman’s interpretation of federal immigration law, but no such federal law exists with respect to the latter. Having determined that undocumented plaintiffs can claim lost wages under state tort law, it then pivots to evidentiary standards to state that documentation status can, but need not, be relevant when determining future lost wages claims.

Underlying Escamilla’s reasoning and holding are the principles of deterrence and compensation that animate tort law. Permitting undocumented tort claimants to claim future lost wages discourages dangerous conduct and allows for full compensation when injury does occur. Barring undocumented tort victims’ future lost wages claims, on the other hand, carries the risk of sanctioning behavior that may harm undocumented individuals who cannot seek full recovery for their injuries under tort law. Weighing these outcomes, Escamilla concludes that “Indiana’s tort trials should be about making injured parties whole – not about federal immigration policies and laws.”^[154]

4 The Road Ahead for Determining Undocumented Tort Plaintiffs’ Future Lost Wages Claims

Judges, lawyers, and legal scholars should follow the Draft Restatement’s lead in looking to Escamilla when evaluating the issue of whether to award future lost wages damage to undocumented tort plaintiffs for several reasons. Before turning to them, however, it is important to consider Escamilla’s shortcomings.

Escamilla could have benefitted from a more detailed preemption analysis, especially because it properly views preemption as the necessary, preliminary inquiry in its framework. For the second part of its preemption inquiry – whether IRCA/Hoffman preempted plaintiff’s claim for future lost wages – Escamilla could have relied on several previous opinions.^[155] It is the first part of the preemption inquiry, however, that would have rendered Escamilla of even greater significance to the tort law cannon. This portion of the preemption inquiry requires a court to determine which state law is in danger of being preempted by IRCA/Hoffman if an undocumented plaintiff is denied future lost wages. Escamilla chose to center its analysis on the Indiana Constitution’s Open Courts Clause. While this was one implicated state law, Escamilla does not explain why the state’s common law of torts is not also at issue in the case. Because not all state constitutions contain an Open Courts Clause,^[156] Escamilla is not as broadly applicable as it might have been had it also discussed IRCA/Hoffman preemption of state tort law.

Surprisingly, very few courts that have conducted a preemption analysis on this issue look to state tort law and of them, only one does so in a rigorous manner – Grocers Supply Inc. v. Cabello, decided by the Texas Court of Appeals in 2012.^[157] That case’s entire preemption analysis concerns whether IRCA/Hoffman preempts the tort common law in Texas.^[158]

After applying the well-recognized presumption against federal preemption of state law, the Grocers Court looked initially at field preemption, a subspecies of implied preemption. It found that although Congress has occupied the field as to immigration law, “immigration is a distinct and separate field from state tort law,” tort law has “traditionally been left to the states to regulate” and “Texas tort law does not attempt to supplement the immigration … field.” ^[159] Moreover, in response to the defendant’s argument that “IRCA preempted the field of regulation of employment,” the court retorted, “[t]his case does not involve the regulation of the Cabellos’ or Grocers’ employment. Rather, it involves the Cabellos recovery of damages as the result of being injured in [an] accident not involving their employment or their employer.”^[160] In this way, Grocers draws a bright line between the regulation of immigration and employment of undocumented workers, which is IRCA’s domain, and state tort law, which addresses personal injury.

The court next turned to conflict preemption, another subspecies of implied preemption, which has two prongs: impossibility and obstacle to a federal purpose. Addressing impossibility, the court found that “providing damages for lost wages and loss of earning capacity and complying with IRCA are not physically impossible” because an undocumented plaintiff’s tort claim “does not arise out of or relate in any way to Grocers’ employment of [undocumented] workers.”^[161] Looking to the second prong, the court found that Texas tort law does not stand as an obstacle to IRCA’s purpose in combatting unlawful migration because “[d]amages awards to tort victims in Texas … do not implicate the number of job opportunities available to undocumented aliens and neither increase nor decrease the opportunities for undocumented aliens to find employment in the United States.”^[162] This is a critical part of Grocers’ holding because it separates undocumented plaintiffs’ future lost wages claims from the promotion of unlawful migration, which was at the crux of Hoffman’s interpretation of IRCA. As Grocers points out, there is no evidence that permitting undocumented plaintiffs to recover future lost wages in tort cases encourages undocumented labor or migration in any way.^[163]

Grocers concludes its preemption analysis by finding that IRCA does not intend to “encroach[] into the State’s authority to regulate health and safety matters,” and that a plaintiff’s documentation status should not affect a tortfeasor’s “duty of care or the damages resulting from its negligence.”^[164] Thus, Grocers highlights the twin purposes underlying tort law – compensating individuals for injuries and deterring tortfeasors from dangerous behavior. Any future opinion addressing an undocumented tort plaintiff’s recovery of future lost wages should include this analysis.

Although Escamilla does not more thoroughly address preemption and connect it to state tort law, it remains the most instructive case on this issue in many ways. First, it provides a clear and straightforward legal framework for evaluating this issue, which is no small feat given the myriad of conflicting opinions on the topic.^[165]

Second, as the Draft Restatement points out, immigration status evidence is like race and gender evidence that treats individuals “as merely the average of a racial or sexual group.”^[166] The Draft Restatement states that this not only “violates fundamental principles of nondiscrimination,” but “perpetuates existing socioeconomic disparities by incorporating those disparities into disparate damage awards.”^[167] Escamilla makes a similar argument when weighing the probative value of immigration status evidence against the likelihood of unfair prejudice.^[168]

Third, Escamilla unveils earlier caselaw’s problematic assumptions about U.S. immigration law and policy by demonstrating that documentation status, alone, often does not result in deportation. This is of paramount importance because all cases that either bar undocumented plaintiffs from recovering future lost wages or admit undocumented status into evidence, without more, rely on the mistaken assumption that undocumented status is strongly correlated with deportation.^[169] Without recognizing the force of Escamilla’s opinion in this regard, future caselaw and legal scholars risk basing their arguments on an assumption that has no basis in law or fact.^[170]

Finally, Escamilla fashions a compromise position between never and always providing future lost wages to undocumented plaintiffs. Because all future lost wages presume a plaintiff could work in the United States but for the injury, recognizing that immigration law might prevent an undocumented plaintiff from working in the country could be relevant depending on the facts of a particular case.^[171] The key here, however, is that relevance cannot be assumed due to the complex and multi-faceted nature of U.S. immigration law and policy, as Escamilla painstakingly details.^[172] Thus, it is reasonable to allow undocumented status evidence, but only if there is evidence that a given plaintiff’s undocumented status will impact that individual’s ability to earn future lost wages.^[173]

5 Conclusions

Escamilla is not perfect. An ideal case on the issue of future lost wages for undocumented tort plaintiffs would, like a chimera, be part Madeira’s robust preemption analysis and part Grocers’ invocation of tort law theory while retaining Escamilla’s unabashed look at the complexities and empirics underlying immigration law and policy. Nonetheless, Escamilla is among the great tort cases of the 21st century because it resists transmuting Hoffman’s narrow holding into a shield for tortious conduct and provides a clear path forward to preserve tort law’s deterrent and compensation functions in the face of increasing hostility towards undocumented plaintiffs.