The Court holds today that New York courts may award damages to compensate a plaintiff for the loss of an opportunity to work illegally. I would hold that such a recovery is barred by the rule of New York law that the courts will not aid in achieving the purpose of an illegal transaction. I would also hold that, if New York law does permit such a recovery, it is preempted by federal immigration law as interpreted in Hoffman Plastic Compounds, Inc. v NLRB (535 US 137 [2002]).
I
The arrangements Balbuena and Majlinger made with their employers violated the Immigration Reform and Control Act of 1986 (IRCA), and so long as they remain undocumented aliens, any arrangements they make with other employers in this country will be illegal also. The central purpose of IRCA was to keep people who entered the United States illegally, like Balbuena, or who entered legally but without authorization to work here, like Majlinger, from having jobs in the United States. As the United States Supreme Court made clear in Hoffman:
“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.” (535 US at 148.)
Such violations are subject to civil or criminal prosecution and penalties under federal law (see 8 USC § 1324a [a], [e], [f]; *364§ 1324c [a], [d]; 18 USC § 1546 [b]). The Court in Hoffman left no doubt that prohibiting the employment of undocumented aliens is the “critical” policy of the statute (535 US at 151). Many may disagree with that policy or regret the statute’s consequences, but IRCA is Congress’s chosen means of dealing with a national problem of huge importance. It is the duty of the courts, state as well as federal, to give effect to that policy choice and to recognize that the arrangements by which undocumented aliens are employed are illegal.
II
The New York courts have long held that they will not award a plaintiff the benefit of an illegal bargain. We have referred to “the familiar rule that illegal contracts, or those contrary to public policy, are unenforceable and that the courts will not recognize rights arising from them” (Szerdahelyi v Harris, 67 NY2d 42, 48 [1986]). Thus in Szerdahelyi we held, applying a statute we found to be declaratory of the common law, that a lender who charged usurious interest could not recover her principal. In Spivak v Sachs (16 NY2d 163 [1965]), we held that a lawyer not licensed in New York could not collect a fee for legal work done in New York. In Stone v Freeman (298 NY 268 [1948]), we held that a vendor could not recover from a broker money that the broker was supposed to have given illegally to an employee of the purchaser, saying:
“It is the settled law of this State (and probably of every other State) that a party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose” (id. at 271 [citations omitted]).
In Surgical Design Corp. v Correa (290 AD2d 435 [2d Dept 2002]), the Appellate Division held that an employer could not enforce a notice-of-termination clause in an employment contract, where the contract called for the employee to perform illegal activities. And in Murray v Interurhan St. Ry. Co. (118 App Div 35 [1st Dept 1907]), the Appellate Division held that the employee of a bookmaker could not recover the wages he lost as a result of his injury in a tort action against a third party.
Decisions like these are not based on a search for the equitable outcome of a particular case, or on a calculation of which *365result will most contribute, in an immediate and practical way, to the enforcement of a particular statute or public policy. Rather, they are based on the sound premise that courts show insufficient respect for themselves and for the law when they help a party to benefit from illegal activity. As Justice Brandéis explained:
“The court’s aid is denied . . . when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress. . . . It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination” (Olmstead v United States, 277 US 438, 484 [1928] [dissenting op; citations omitted]).
Accordingly, in cases like these the courts do not ordinarily balance the benefit and harm, either to public or private interests, that will follow from an award, but simply dismiss the plaintiffs claim, though doing so may give a windfall to a defendant who has also acted illegally. “The law leaves the parties . . . where it finds them” (Szerdahelyi, 67 NY2d at 48 [citations omitted]).
Here, Balbuena and Majlinger are not quite seeking the enforcement of illegal contracts. But because the employment of Balbuena, Majlinger or others in their situation violates IRCA’s prohibitions, their claims in tort actions for the loss of earnings from such employment are claims to obtain the benefit of illegal arrangements. Their claims thus put at risk the duty of courts in our legal system to avoid the promotion of illegality. This risk cannot be resolved by calculating the deterrence or incentive value of permitting recovery. Recovery is barred unless we Eire to hold that these cases are governed by an exception to the rule that courts do not award the benefit of illegal bargains.
That rule, important as it is, is not absolute:
“ ‘[w]here contracts which violate statutory provisions are merely malum prohibitum, the general rule does not always apply. If the statute does not provide expressly that its violation will deprive the parties of their right to sue on the contract, and the denial of relief is wholly out of proportion to the requirements of public policy . . . the right to recover will not be denied.’ ” (Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 127 [1992], quoting *366Rosasco Creameries, Inc. v Cohen, 276 NY 274, 278 [1937].)
But while this exception might apply in some cases involving undocumented aliens, it does not apply here.
There would be a much better argument for allowing Balbuena and Majlinger to recover if they had done work for which their employers had refused to pay them, and they were suing for their wages. In such a case, the injustice of denying recovery—embodied both in the hardship to the workers and the enrichment of the employers—would be gross, and it could be strongly argued that “the denial of relief is wholly out of proportion to the requirements of public policy.” In such a case, we might consider whether we would characterize IRCA violations as “merely malum prohibitum” (evil because prohibited) rather than malum in se (evil in themselves), and allow recovery. A number of decisions in this state (Nizamuddowlah v Bengal Cabaret, 69 AD2d 875 [2d Dept 1979]; Gomez v Falco, 6 Misc 3d 5 [App Term, 2d Dept 2004]; Ulloa v Al’s All Tree Serv., 2 Misc 3d 262 [Nassau County Dist Ct 2003]) and in federal courts (e.g., Flores v Amigon, 233 F Supp 2d 462 [ED NY 2002]) hold that undocumented aliens may recover at least some compensation for work they have actually performed, and I do not imply that we should hold otherwise.
But these cases are different. Neither Balbuena nor Majlinger is seeking compensation for work actually performed. In fact, neither is even suing his employer. Each of them is suing third parties—in Balbuena’s case, the owners of the construction site and in Majlinger’s several entities alleged to be site owners and/or general contractors—who had no involvement with any violation of the immigration laws. They claim that defendants are liable for personal injuries that plaintiffs suffered, and that defendants should pay damages including the amount that plaintiffs, but for their accidents, would have earned in their illegal employment. Balbuena’s employer is named as a third-party defendant, but it is not clear from the record whether defendants’ claim over against the employer will succeed. Maj-linger’s employer is not a party at all.
Thus these are not cases, as some involving illegal arrangements are, in which to dismiss the claim is to give a windfall to a defendant at least as guilty of wrongdoing as the plaintiff, or in which to deny recovery is to leave a plaintiff uncompensated for work actually done. The wrong for which Balbuena and Maj-linger seek compensation in the form of lost earnings is that *367their injuries have prevented them, from working in the United States—exactly the result that IRCA was intended to accomplish. I do not see how, except by rejecting the policy on which IRCA is premised, we can say that denial of the remedy plaintiffs seek is out of proportion to the requirements of public policy.
When courts permit parties to recover on the basis of illegal transactions, the consequences can be unseemly. For example, the majority suggests telling a jury that it may “consider immigration status as one factor in its determination of the damages” (majority op at 362). But what does that instruction mean? Is the message: “The plaintiffs damages depend on his chances of getting caught; the more likely he is to evade the authorities, the more damages you may award”? Or, if the jury is supposed to decide how much weight to give to IRCA policies, then the message is: “A violation of the law is only as important as you want it to be.” The only instruction that is not, at best, a bit embarrassing to the system is one that says in substance: “You may not award any damages for lost earnings in employment that would have violated the immigration laws.” The Court today holds that such an instruction may not be given.
A still more vexing problem is presented by what is loosely called a plaintiffs “duty” to mitigate damages—more precisely, the rule that a plaintiff who does not mitigate will suffer a reduction in damages. Is a plaintiff in a case like these—who may be disabled, say, from construction work but not from less strenuous activity—required to mitigate by seeking alternative illegal employment? May he avoid a reduction in his damages by declaring that he has decided, belatedly, not to seek any job for which he may not lawfully be hired? It is surely unfair to defendants to hold that lost illegal wages may be recovered, but that only legal wages may be considered in mitigation; yet it also seems intolerable to hold that the law will punish a plaintiff for failing to violate the law. The majority tries to finesse the question by assuming, if I read its opinion correctly (see majority op at 361), that plaintiffs in these two cases are totally disabled from work. But they may not be so, and certainly not all plaintiffs who make such claims will be. The majority offers no clue as to how mitigation issues can be handled when they arise.
In sum, I would hold that an award of lost earnings based on employment prohibited by IRCA would carry out the purpose of an illegal transaction and is therefore impermissible under established principles of New York law. I would decline to follow *368the Appellate Division cases (Collins v New York City Health & Hosps. Corp., 201 AD2d 447 [2d Dept 1994]; Public Adm’r of Bronx County v Equitable Life Assur. Socy. of U.S., 192 AD2d 325 [1st Dept 1993]) that hold otherwise. Thus, I do not think it is necessary to reach the preemption issue.
Ill
The majority assumes with little discussion that New York law, if not preempted, would permit recovery of lost earnings in these cases, and devotes its analysis almost wholly to the federal preemption issue. I disagree, as I have explained, with the majority’s view of New York law. I also disagree with the majority’s decision on preemption.
The preemption issue, as all agree, depends on the interpretation of Hoffman, in which the Supreme Court held that a National Labor Relations Board award of back pay “to an undocumented alien who has never been legally authorized to work in the United States ... is foreclosed by federal immigration policy, as expressed by Congress in [IRCA]” (535 US at 140). Defendants in these cases argue that what is true of an NLRB back pay award must also be true of the awards for lost earnings that Balbuena and Majlinger seek. If one is “foreclosed by federal immigration policy,” so is the other. Thus, defendants argue, state law, to the extent that it permits these plaintiffs to recover lost earnings, “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress” and is therefore preempted (California Coastal Comm’n v Granite Rock Co., 480 US 572, 581 [1987]). I think this argument is correct.
The majority tries to distinguish Hoffman on the ground that the employee involved in Hoffman, unlike plaintiffs here, presented his employer with false documents that purported to authorize him to work. Hoffman, the majority says, “is dependent on its facts, including the critical point that the alien tendered false documentation” (majority op at 360). I do not think this narrow reading of Hoffman is consistent with the Supreme Court’s opinion read as a whole.
The Hoffman court’s statement of its holding at the outset of its opinion is the broad one I quoted above: an award of back pay “to an undocumented alien who has never been legally authorized to work in the United States ... is foreclosed by federal immigration policy” (535 US at 140). Later, in explaining the reasons for its holding, the Court specifically refers to both of the possible ways in which an undocumented alien can *369obtain employment: “Either the undocumented alien tenders fraudulent identification ... or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations” (535 US at 148). The Court makes clear that both of these “directly contrayente] explicit congressional policies” (id.). The Court then again states its holding in broad terms: “We find . . . that awarding backpay to illegal aliens runs counter to policies underlying IRCA” (id. at 149). And again, near the end of its opinion: “We therefore conclude that allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA” (id. at 151). The Court does mention, and at times emphasizes, the fact that the employee in Hoffman used false documentation, but the Court conspicuously fails to say that the case would, or might, come out the other way if that fact were not present.
I agree with the majority here that the conduct of the undocumented alien in Hoffman was worse than the conduct of Balbuena and Majlinger. He committed a crime, and they did not. If Balbuena and Majlinger were suing their employers—who, on the facts of these cases, may well have acted criminally in hiring them without demanding documentation from them—the difference in culpability might be relevant; as I suggested above, a case in which a lesser offender is suing a greater one may sometimes (though not always) qualify for an exception to the general rule that lawsuits based on illegal transactions will not be countenanced. But, as I said above, neither of these cases is such a case, and I find the majority’s attempt to draw an analogy totally unpersuasive. The idea, suggested in the majority opinion (at 361 n 8), that the employers’ violations of the immigration laws may be imputed to defendants here—the owners of the job sites and the contractors who worked on them—under New York Labor Law § 240 (1) and § 241 (6) seems to me to lack any support in the text of those statutes, in precedent or in common sense.
The preemption issue here depends not on whether Balbuena and Majlinger committed criminal violations of IRCA, but on whether awarding them lost earnings will undermine IRCA’s policy. Hoffman makes very clear, I submit, that the policy behind IRCA is that undocumented aliens may not be employed in the United States, and that an award of back pay—from which an award of lost earnings is indistinguishable— undermines that policy. I would therefore hold that Hoffman *370controls this case, and that federal immigration law preempts any New York law which would otherwise permit a lost earnings award in these cases.
IV
Accordingly, I would affirm the order of the Appellate Division in Balbuena v IDR Realty LLC, and would reverse the order in Majlinger v Cassino Contr. Corp.
Chief Judge Kaye and Judges G.B. Smith, Ciparick and Rosenblatt concur with Judge Graffeo; Judge R.S. Smith dissents and votes to affirm in a separate opinion in which Judge Read concurs.
In Balbuena v IDR Realty LLC: Order reversed, etc.
Chief Judge Kaye and Judges G.B. Smith, Ciparick and Rosenblatt concur with Judge Graffeo; Judge R.S. Smith dissents and votes to reverse in a separate opinion in which Judge Read concurs.
In Majlinger v Cassino Contr. Corp.: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative.