Court: Worker’s immigration status doesn’t change wage requirement

Friday, Aug. 12, 2005 | 11:13 a.m.

CARSON CITY -- A business that has a contract to perform a public works project must pay the prevailing wage to all its workers, even those who are illegal immigrants, the Nevada Supreme Court said in a decision announced Thursday.

The court said the law does not exclude the payment of the prevailing wage to a worker "on the basis of his immigration status."

The Supreme Court ruled on a case of 20 workers who filed wage claims against City Plan Development, which was awarded a contract by Clark County for construction of a fire station that was completed in 1999.

Former state Labor Commissioner Terry Johnson found that City Plan Development owed five workers $11,946 and also assessed a penalty of $11,946. City Plan was also disqualified for two years from receiving any public works contracts.

City Plan appealed, claiming the state attorney general and labor commissioner aided in illegal acts by giving public benefits on the undocumented workers.

Justice Bob Rose, the author of the unanimous opinion of the three-judge panel, said the payment of the prevailing wage by a private company does not represent a public benefit to the workers.

Rose cited a 2003 law mandating the prevailing wage be enforced without regard to whether an employee is lawfully or unlawfully employed.

"This further evidences the Legislature's intention that any worker falling within the purview of the prevailing wage laws be paid accordingly regardless of his status as an illegal alien."

The court said, "Allowing City Plan to hire undocumented workers and pay them beneath the prevailing wage scale because they are undocumented would circumvent the purpose of the prevailing wage statutes and would only encourage others to hire undocumented aliens to perform necessary work."

The court did modify the $11,946 penalty imposed by the labor commissioner. It said it was not appropriate for the commissioner to assess a double fine. It said the commissioner could impose fines to cover the cost of the investigation and prosecution.

It sent that part of the case back to the labor commissioner to recalculate what these costs should be.

In another ruling, the Supreme Court reinstated a medical malpractice case brought by Annette Szydel and her husband, Kevin, against Dr. Barry Markman in Las Vegas.

When Szydel underwent breast lift surgery in June 2001, a needle was left in her right breast. As soon as it was discovered, she was returned to surgery and the needle was removed.

She filed suit but did not include the affidavit of an expert witness as required in the law. District Judge Valorie Vega dismissed the suit.

The Supreme Court, in a 2-1 decision, said the law permits some medical malpractice claims to go forward where negligence can be shown without expert medical testimony.

"It would be unreasonable to require a plaintiff to expend unnecessary effort and expense to obtain an affidavit from a medical expert where expert testimony is not necessary for the plaintiff to succeed at trial," Justices Bob Rose and Mark Gibbons said.

Justice Jim Hardesty disagreed, saying the law is clear that the suit must be dismissed if it is filed without an affidavit of a medical expert.

"The plain meaning of the statute clearly intends to prevent fraudulent claims from being filed."

Hardesty said in cases such as a foreign object remaining in the body after surgery, it should be easy to get the affidavit of an expert.