On appeal from Superior Court of New Jersey, Law Division, Essex County, L-2911-02.
Before Judges Conley, Carchman and Weissbard.
The opinion of the court was delivered by: Conley, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Rosa Crespo, an illegal alien, brought an action under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, against her employer, defendant Evergo Corporation, and against her immediate supervisor, defendant Inuk Lee, claiming discriminatory termination. Pursuant to the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C.A. § 1324a, and the United States Supreme Court's ruling in Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002) (Hoffman), the trial judge granted partial summary judgment barring plaintiff's claim for economic damages (back pay, front pay, and lost benefits), but allowed her to pursue non-economic damages (emotional distress damages, punitive damages and counsel fees). On leave granted, defendants appeal the interlocutory order allowing plaintiff to pursue non-economic damages. We reverse and remand for a dismissal of the entire complaint.
As presented in the context of plaintiff's particular claims, the issue before us is quite narrow. Specifically, the complaint alleges discrimination in defendants' alleged refusal to allow plaintiff to return to employment after her maternity leave. It does not allege workplace sexual harassment or that any other LAD misconduct occurred during the course of plaintiff's employment. This appeal, then, does not call upon us to determine whether an employee's illegal alien status would shield a LAD-offending employer from non-economic damages. But see Taylor v. International Maytex Tank Terminal Corp., 355 N.J. Super. 482, 497-98 (App. Div. 2002). In the context of plaintiff's claims, we agree with the motion judge's determination that IRCA, as applied by the Supreme Court of the United States in Hoffman, bars plaintiff's economic damages. We see no basis for distinguishing her related non-economic damages and conclude they, too, are barred.
The facts are not in dispute. On March 24, 2000, plaintiff started working with Evergo as a warehouse employee after presenting a social security card and representing that she was legally entitled to work in the United States. It is undisputed that the social security card was fraudulent and that plaintiff was not a legal citizen. Defendants did not learn this until after she filed her complaint.
In March 2001, plaintiff informed her immediate supervisor, defendant Lee, that she was pregnant. In October 2001, she stopped working. In December 2001, plaintiff was ready to return to work. When she called to arrange for her return, defendant Lee's secretary told her that Lee had said that business was slow and that she should call back in January 2002. She was specifically informed that Lee had said she could not, at that time, come back to work. When she called in January, the secretary said that Lee was on vacation and he could not talk to her. Plaintiff, therefore, alleges that she was terminated in January 2002. Following the last phone call, plaintiff alleges that she learned another person had been hired to perform the same or a similar job.*fn1 She also learned that Lee had commented that plaintiff was not permitted to return because"'she just had a baby and people like her are irresponsible.'"*fn2
Pursuant to IRCA, 8 U.S.C.A. §§ 1324a(a)(1) and (a)(2), it is illegal for an employer to knowingly hire aliens who are not authorized to work in the United States, or to continue employing such aliens with the knowledge that those workers are or have become unauthorized to work. Thus,"if an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker's undocumented status." Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 187 (4th Cir. 1998)."IRCA thus statutorily disqualifies any undocumented alien from being employed as a matter of law." Ibid. Similarly, IRCA makes it a crime for an illegal alien to use fraudulent documents in obtaining employment. 8 U.S.C.A. § 1324c(a).
LAD is not contradictory. Indeed, although it provides that all persons shall have the opportunity to obtain employment without being discriminated against, N.J.S.A. 10:5-4, it also provides that it shall not be unlawful under the LAD for an employer to"restrict employment to citizens of the United States where such restriction is required by federal law...." N.J.S.A. 10:5-12(a). In Hoffman, the Court expressly held that an NLRB award of back pay to an illegal alien"is foreclosed by federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986." Id. at 137, 122 S. Ct. at 1278, 152 L. Ed. 2d at 276. Describing IRCA as a"comprehensive scheme prohibiting the employment of illegal aliens in the United States," the Supreme Court found that it"'forcefully' made combating the employment of illegal aliens central to the'policy of immigration law.'" Id. at 147, 122 S. Ct. at 1282, 152 L. Ed. 2d at 281. As part of this scheme, the Court noted: if an employer unknowingly hires an unauthorized alien, or if the alien becomes
unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker's undocumented status. § 1324a(a)(2).... IRCA also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents. § 1324c(a). It thus prohibits aliens from using or attempting to use"any forged, counterfeit, altered, or falsely made document" or"any document lawfully issued to or with respect to a person other than the possessor" for purposes of obtaining employment in the United States. §§ 1324c(a)(1)-(3). Aliens who use or attempt to use such documents are subject to fines and criminal prosecution. 18 U.S.C. § 1546(b)....
Under the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA's enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations.
[Id. at 148, 122 S. Ct. at 1283, 152 L. Ed. 2d at 281-82.]
The facts in Hoffman are as follows. In 1988, Jose Castro was hired by Hoffman to work in its plastics production facility. At the time of hiring, Hoffman relied on documents that Castro had presented that appeared to verify his right to work in the United States. Shortly thereafter, a union launched an organizing campaign at Hoffman's production plant. Castro participated in the campaign by distributing union authorization cards. In 1989, to rid the company of union supporters, Hoffman selected known union supporters in its workforce for layoff. Castro was one of the workers who was terminated. One discharged employee filed charges with the National Labor Relations Board (NLRB). Three years later, the NLRB found that the layoffs violated the National Labor Relations Act (NLRA) and ordered Hoffman to reinstate and award back pay to the illegally fired workers, including Castro. During a compliance hearing in 1993, however, Castro admitted to the Administrative Law Judge (ALJ) that he was an illegal worker who had tendered fraudulent papers to secure employment with Hoffman. The ALJ determined that because of Castro's illegal status, he could not be awarded back pay or be reinstated because such a remedy would conflict with IRCA's provisions that prohibit employers from knowingly hiring illegal aliens using fraudulent documents to obtain employment. The ...