Posted on 01/12/2004 9:37:51 AM PST by Happy2BMe
Border Patrol: Can we give you a ride to the bus station?
Citizens Target Illegal Workers (Lowcountry business backlash.)
Article From http://www.twmlaw.com
| Supreme Court Denies Back Pay to Fired Undocumented Immigrants Click for a Printable Version of this Article
By Stanley Mailman and Stephen Yale-Loehr** Do undocumented immigrants have the same rights as U.S. workers when they are fired or mistreated in the workplace? They don’t, at least under the National Labor Relations Act (NLRA), according to last month’s decision by the Supreme Court in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board (NLRB), 2002 U.S. LEXIS 2147 (Mar. 27, 2002). There, the Supreme Court held 5-4 that the NLRB lacked authority to award back pay to an undocumented noncitizen who had never been authorized to work in the United States. This article summarizes Hoffman and ponders its relevance to other labor laws affecting noncitizens. The Supreme Court accepted the Hoffman case because of a dispute among the lower courts. In Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), the Supreme Court had also addressed the coverage of undocumented workers in the context of the NLRA and explained that affording those workers the protection of U.S. labor laws promotes the purposes of both the labor and the immigration laws. Among other things, the Sure-Tan Court noted that that the immigration laws at that time expressed only a "‘peripheral concern’" with the employment of illegal aliens. Id. at 892 (quoting De Canas v. Bica, 424 U.S. 351, 360 (1976)). Two years after Sure-Tan, Congress passed the Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359. That law for the first time made it illegal for employers to knowingly hire unauthorized workers. Since then the courts of appeals have divided on whether back pay may be awarded to undocumented workers. Compare NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 56 (2d Cir. 1997) (undocumented workers could collect back pay under the NLRA), and Local 512, Warehouse and Office Workers' Union v. NLRB, 795 F.2d 705, 723 (9th Cir. 1986) (same), with Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115 (7th Cir. 1992) (unauthorized workers could not collect back pay under the NLRA). The Hoffman case began in 1988, when Hoffman hired Jose Castro, an undocumented immigrant from Mexico. A year later the company fired him for supporting a union-organizing campaign at its factory. The NLRB found that the layoff violated the NLRA and ordered an administrative law judge (ALJ) to decide the appropriate relief. At a hearing in 1993 to determine the amount of back pay due Castro, Castro revealed that he was not authorized to work in the United States, and that he obtained employment with Hoffman only by giving the company a birth certificate belonging to a friend in Texas. Based on that testimony, the ALJ held that Castro was precluded from receiving back pay because of IRCA’s employer-sanctions provisions. The NLRB reversed, holding that the most effective way to harmonize the labor and immigration laws was to provide back pay to undocumented workers up to the date they were determined to lack work authorization. The D.C. Circuit upheld the NLRB. Hoffman Plastic Compounds, Inc. v. NLRB, 208 F.3d 229 (D.C. Cir. 2000) (three-judge panel), 237 F.3d 639 (D.C. Cir. 2001) (en banc). The Supreme Court reversed the NLRB. Chief Justice William Rehnquist, writing for the majority, held that because of IRCA, the "legal landscape [had] now significantly changed." Hoffman, 2002 U.S. LEXIS 2147, slip op. at 9. IRCA established an extensive employment verification system and also made it a crime, under certain circumstances, for an unauthorized worker to submit fraudulent documents. Thus, allowing the NLRB to award back pay to undocumented workers "would unduly trench upon explicit statutory prohibitions critical to federal immigration policy." Id., slip op. at 13. The majority refused to allow the back pay award "to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud." Id., slip op. at 10. Awarding back pay "not only trivializes the immigration laws, it also condones and encourages future violations," wrote Justice Rehnquist. Id., slip op. at 12. The majority also noted that the NLRB had already imposed other significant sanctions against Hoffman, including orders that it cease and desist its NLRA violations and conspicuously post a notice. Id., slip op. at 14. According to Justice Rehnquist, those sanctions were sufficient to effectuate national labor policy regardless of whether back pay accompanied them. Justice Stephen Breyer noted in his dissent that all the relevant federal agencies, including the Justice Department, had told the Court that the back pay award would not interfere with U.S. immigration policy. "Rather, it reasonably helps to deter unlawful activity that both labor laws and immigration laws seek to prevent." Id., dissenting slip op. at 1 (emphasis in original). Justice Breyer also noted that the majority "does not deny that the employer in this case dismissed an employee for trying to organize a union--a crude and obvious violation of the labor laws." Id. Justice Breyer dismissed the majority’s view that Hoffman still faced significant sanctions, in that it would be required to "cease and desist" from future violations and would have to post a notice on workers’ rights in the workplace. According to Justice Breyer, those penalties were not enough. The back pay award was also needed, he claimed, because "it helps make labor law enforcement credible; it makes clear that violating the labor laws will not pay." Id. at 2. Hoffman has been criticized by both pro- and anti-immigrant groups. Pro-immigrant advocates argue that undocumented workers now will be more afraid to report discrimination, safety violations, or abuses by employers. They also fear that the decision will motivate unscrupulous employers to hire more undocumented workers because they know if they violate such employees’ rights, the workers have no real recourse. Mark Krikorian, executive director of the Center for Immigration Studies in Washington, DC, which seeks tougher enforcement of immigration laws, also criticized the decision. Making undocumented workers ineligible for back pay, he said, "makes them much more attractive to crooked employers…. This…exacerbates lack of control over our borders…. [I]t strengthens the jobs magnet that draws illegals here instead of weakening it…. Tacking up an announcement on the lunchroom wall--that’s no punishment. Sixty-seven thousand dollars in back pay plus interest, that’s a punishment." Quoted in Patty Reinert, Divided Court Limits Rights of Illegal Workers, Houston Chronicle, Mar. 27, 2002, http://www.chron.com/cs/CDA/story.hts/nation/1318232. Impact of Hoffman on Other Labor Laws The Hoffman decision answers one narrow question, but raises many others. For example, it is unclear whether the Supreme Court’s rationale will apply to other workplace rights and laws. What about remedies for national origin discrimination violations under Title VII of the Civil Rights Act of 1964? Traditionally, the Equal Employment Opportunity Commission (EEOC) has used many of the same remedies as the NLRB, including back pay and reinstatement. See EEOC, Enforcement Guidance on Remedies Available to Undocumented Workers Under Federal Employment Discrimination Laws, N-915.002 (Oct. 26, 1999), available at http://www.eeoc.gov/docs/undoc.html (last visited Apr. 6, 2002). Hoffman now casts doubt on those remedies. Similarly, until now most states have permitted workers’ compensation awards to unauthorized workers. See generally Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 66.03 (2002). State courts have offered a variety of rationales for allowing undocumented workers to receive workers’ compensation. For example, in Dowling v. Slotnik, 244 Conn. 781, 712 A.2d 396 (1998), the Connecticut Supreme Court noted that workers’ compensation benefits are intended to compensate a worker for work-related injuries without regard to fault. The court concluded that because compensation benefits cannot be considered a sanction, the state law on workers’ compensation was not preempted by IRCA’s federal employer-sanctions provisions. Dowling also held that denying compensation coverage would create powerful incentives for employers to hire undocumented workers. The court reasoned that when undocumented aliens are included as covered employees under the workers’ compensation scheme they become less attractive hires. As a result the goal of reducing illegal immigration is advanced. 244 Conn. at 796-97. Testa v. Sorrento Restaurant, Inc., 10 A.D.2d 133, 197 N.Y.S.2d 560 (1960), offers a third rationale for granting workers’ compensation to undocumented workers. In that case the New York Appellate Division, Third Department awarded workers’ compensation to a citizen of Italy who had entered the United States illegally. The court distinguished between work that is unlawful and work that is lawful but for which the worker may be handicapped by a legal disability. Just as a minor who is unlawfully employed can still receive workers’ compensation, so can a noncitizen who is in the country unlawfully. All these rationales are now open to question based on Hoffman. Legislation Needed? The Hoffman majority noted that any perceived deficiency in the NLRA’s existing remedial arsenal must be addressed by congressional action, not the courts. Hoffman, 2002 U.S. LEXIS 2147, slip op. at 14. We would hope that any such legislation would more generally harmonize the labor rights and immigration disabilities of the millions of undocumented immigrants now in the United States. Those rights and disabilities are closely connected to the legalization package that the United States is negotiating with the government of Mexico. Ginger Thompson, U.S.-Mexico Relations: Alliance Meets Boundaries, N.Y. Times, Mar. 23, 2002, at A7. No matter how those negotiations play out, for the many noncitizens who would not be eligible for such an "amnesty," a congressional response is needed to the questions left unanswered by Hoffman. _______ * This article originally appeared in the April 22, 2002 issue of the New York Law Journal. Copyright © 2002 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article. ** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at True, Walsh & Miller (http://www.twmlaw.com/) in Ithaca, New York, and teaches immigration law at Cornell Law School. He can be reached at syl@twmlaw.com. |
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The judges noted that their decision put the 11th Circuit in conflict with the 7th Circuit's decision last year in Baker v. IBP, 357 F.3d 685, in which that court refused to allow a RICO case to go forward.The 11th Circuit judges pointed out that "the Supreme Court had yet to delineate the exact boundaries" of some of the RICO tests -- an indication that the case could get attention from the U.S. Supreme Court, which often accepts cases in order to resolve a split among the circuits.
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