In December 2004, in a pair of cases, the Appellate

Division, First Department, held that under state labor

and tort laws, injured workers who are not legally permitted

to be present or employed in the United States

are only entitled to receive lost earnings reflecting what

they could have earned in their country of origin. This

article explores these First Department decisions by first

discussing the federal statutory and decisional backdrop

against which the cases arose. This article then

provides a discussion of the First Department cases and

the competing economic incentives they implicate.

Finally, this article posits that a more appropriate balance

of federal immigration law and New York State

Labor Law § 240 policy is a rule that holds an employer

(or other party) liable for an undocumented worker’s

lost wages only when that employer (or other party)

knew or should have known of the worker’s immigration

status.