Economic Damages for Undocumented Workers

With the recent election results dominating headlines everywhere, many are anticipating swift and dramatic changes in various sectors of U.S. policy. One such area garnering attention is immigration. California has the highest number of undocumented workers in the country. It will be interesting to see how the new policies will affect  undocumented workers when filing lawsuits.
In our personal experience, we have only calculated damages where the Plaintiff is an undocumented worker when there is a severe traumatic injury or a wrongful death (filed by the surviving family). We have not come across many lawsuits where the damages are not substantial.

When calculating damages for an undocumented worker, we usually calculate two distinct scenarios. The first is the Plaintiff as he/she was at the time of the incident. We rely on U.S. Statistical data to calculate Life Expectancy, Work Life Expectancy, and Healthy Life Expectancy. We calculate the earnings basis based on the demonstrated earnings at the time of the incident. If the incident resulted in an alleged wrongful death, we use the American Time-Use data to calculate the value of the decedent’s household services. In short, we assume that the Plaintiff/Decedent would have remained in the United States and the earnings would be comparable to the historical earnings.

In an alternative scenario, we assume that due to the undocumented status, the Plaintiff would have been deported to his country of origin. Based on the country of origin, the data available to calculate losses varies significantly. Because there is usually no demonstrated earnings, one method of calculating an earnings basis is to research the average earnings of the occupation the Plaintiff had at the time of the incident. Another method is to look at the Plaintiff’s education and vocational skills and use the corresponding earnings.  In addition to using the earnings data of the Plaintiff’s home county, we also need to use the Life Expectancy and Work Life Expectancy (usually only average retirement age is the only data available) of the country.  All the damages are calculated in the currency of the Plaintiff’s home country (which includes the growth rate and the discount rate used) and then converted to U.S. Dollar based on the exchange rates.  In most cases, the difference of the losses in these two scenarios are substantial. Naturally, defense attorneys argue for the deportation scenario while Plaintiff attorneys try to use the U.S scenario.

In light of the advocated policies of this new administration, it will be interesting to see how this affects lawsuits filed by undocumented workers. Will they feel more intimidated to file lawsuits to begin with? If a lawsuit is filed, will the jury lean towards granting damages based on a scenario of deportation?