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The National Labor Relations Act (“NLRA”) grants rights and protections to American employees who seek to form and join unions. Employers who discharge, lay off or otherwise discriminate against such employees in violation of the NLRA can be ordered to reinstate those employees to their former jobs and provide them backpay with interest. Are undocumented aliens, who are not lawfully working in this country, afforded the same rights, protections, and remedies under the Act? No. Illegal immigrants who are wrongly fired for union organizing are not entitled to back pay, the U.S. Supreme Court ruled.

In Hoffman Plastic Compounds, Inc. v. NLRB, a controversial employment case, the Supreme Court voted 5-4 that federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986 (“IRCA”), forecloses the National Labor Relations Board (“NLRB”)–the federal agency responsible for enforcing the NLRA–from awarding back pay to an undocumented alien who has never been legally authorized to work in the United States.

The case involved Jose Castro, a Mexican who used a friend's Texas birth certificate to identify himself as a citizen when he obtained the job operating blending machines at Hoffman's Paramount plant in May 1988. Eight months later, he and three other workers were laid off after taking part in a union organizing campaign–dismissals the NLRB found were illegal retaliation for their union activity. The NLRB awarded the workers back pay to cover their wage losses, the only financial remedy it can order in such cases. Castro's award was nearly $70,000, including interest, covering the 3 1/2 years from his firing to the time the company learned he was an illegal immigrant.

Chief Justice William H. Rehnquist, writing for the slim majority of the Court, stated that undocumented immigrants have no legal right to work in the United States. To allow the NLRB “to award backpay to illegal aliens would unduly entrench upon explicit statutory prohibitions critical to federal immigration policy as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of immigration laws, and encourage future violations.” Simply put, it would “trivialize the immigration laws [and] also condone and encourage future violations” if these same unlawful employees could win money awards for lost work. “The aim of our immigration laws is to preserve jobs for those lawfully in this country.”

The Court also said action by the NLRB, a federal agency, required Hoffman Plastic to violate a federal law against knowingly employing Jose Castro, the illegal alien, and contributed to keeping him in the United States illegally. Rehiring a person once the company learns he is undocumented is illegal under IRCA. IRCA requires all job applicants to prove they are legally eligible to work in the United States, bars applicants from using false papers to prove citizenship and forbids employers from knowingly hiring or retaining illegal aliens.

The Court observed that other NLRB remedies such as “cease and desist” orders and required postings of notices at the workplace were sufficient remedies under the circumstances. Accordingly, it now appears that undocumented aliens are afforded the right to engage, join or form unions, and are protected by the NLRA from discriminatory acts because of those activities, but there are no reinstatement or backpay remedies available to these discriminates.

Dissenting justices, immigrants'-rights advocates and other critics said the ruling actually creates an incentive for employers to hire illegal immigrants by eliminating financial penalties. While the ruling dealt only with the issue of unionization, it is likely to reach much further into the workplace.

Will the Supreme Court's rationale, that Congress' policy against illegal immigration and unauthorized work by aliens, trump general remedies in the NLRA or other workplace statutes? The answer most likely will be yes. The Hoffman Plastic's decision could also affect illegal immigrants' ability to recover damages for other types of on-the-job mistreatment, such as discrimination/harassment (i.e. race, national origin, sex, age, etc.) and wage-and-hour violations.

The EEOC has already stated that the Supreme Court's decision will affect both its policy guidance on remedies for undocumented workers and its policies on back-pay orders and other remedies for victims of sexual, age, racial or other discrimination. The EEOC has traditionally included undocumented workers among those protected by federal discrimination laws. We’ll update you on the EEOC’s policy changes in our next issue.

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