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Practice Tip: Lost Earning Capacity of Undocumented Workers

By Chad L. Staller

Currently, undocumented aliens injured on the job in the United States may recover damages for lost earning capacity, but this area of law is in flux. Things could change as courts continue to interpret the extent of recovery available to undocumented workers, and as state legislatures debate statutes limiting recovery. As the landscape shifts, a significant number of claims are being made, due to the large number of undocumented workers in the workforce and the nature of the work typically performed by undocumented workers.

Here, we offer a brief survey of the current state of case law in this area and review a methodology for calculating lost earning-capacity damages to undocumented workers.

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