Supreme Court Precedent Creates Difficulty for Undocumented Workers
September 3, 2013
In July of this year, the Second Circuit Court of Appeals upheld a decision by the National Labor Relations Board (NLRB) to deny an award of back pay to undocumented alien workers in Palma v. NLRB. The workers’ claim stated that their employer had wrongfully discharged them for participating in activities protected by the National Labor Relations Act (NLRA). On initial review, an administrative law judge recommended an award of both unconditional reinstatements with reimbursement of back pay for the workers. The NLRB opted not to follow the recommendation, however, and denied an award of back pay based on a 2002 decision by the United States Supreme Court, Hoffman Plastic Compounds, Inc. v. NLRB. On appeal, the Second Circuit agreed with the NLRB’s interpretation of Hoffman Plastic and upheld the denial of back pay for the undocumented workers despite their wrongful discharge.
The Hoffman Plastics Decision
The NLRB’s reliance on Hoffman Plastics may constitute a significant barrier for undocumented workers in future wage claims. In Hoffman Plastics, an illegal immigrant, Jose Castro, used false documents to obtain employment with Hoffman, a small manufacturer in California. Seven months later, Castro participated in a union organizing campaign by handing out fliers and union authorization cards, activities that are legally protected by the NLRA. After Hoffman terminated Castro and the others for their protected activities, they brought a claim before the NLRB, which awarded them reinstatement with back pay. Hoffman Plastics appealed to the Supreme Court, arguing that Castro was not entitled to back pay because his employment was illegal under the Immigration Reform and Control Act of 1986 (IRCA). The Supreme Court agreed with Hoffman’s argument, holding that the IRCA prevents punitive provisions against an employer under the NLRA that would benefit an employee who knowingly violated immigration laws. Because Castro had fraudulently obtained employment in violation of the IRCA, he was entitled to no back pay award.
The plaintiffs in Palma argued that, unlike Hoffman, there was no evidence that they used false documents. However, the Second Circuit held that mere unlawful presence in the United States was enough to be criminally punishable under the ICRA, and therefore bar any back pay awards. However, the court left open the possibility of reinstatement of employment if the plaintiffs showed proper documentation.
Potential Barriers for Immigrant Workers
The United States Department of Labor stated that the Hoffman decision did “not mean that undocumented workers do not have rights under the U.S. labor laws." However, the dissent in Hoffman expressed concern that the decision gives employers an avenue to relieve themselves of responsibility for illegal employment actions against undocumented workers, and many employment and immigration experts agree. Hoffman and the recent Palma decisions significantly limit the availability of relief to immigrant workers in claims for unlawful termination, discrimination, and wage and hour violations. This may potentially open the door for potential abuses of undocumented workers with few consequences for the employers and many worry that employers will feel free to violate the NLRA without fear of punishment.
If you believe your employer has violated labor laws, you should contact the attorneys at Pershing Square Law Firm as soon as possible.