Illegal Immigrants Deserve Protection of American Labor Law
Originally Published on April 7, 2002 by the Chicago Tribune
By Christopher Ho


José Castro was fired by his employer, Hoffman Plastic Compounds, because he was trying to unionize his workplace. Nobody disputes that. And the fact that Hoffman violated the National Labor Relations Act by retaliating against him? Well, nobody disputes that either. In fact, that's exactly what the federal National Labor Relations Board concluded in its proceedings against Hoffman for its unlawful labor practices. U.S. Supreme Court Justice Stephen Breyer agreed, describing Hoffman's actions as "a crude and obvious violation of the labor laws."

However, because Mr. Castro happens to be an undocumented immigrant worker, a 5-4 majority of the U.S. Supreme Court decided that he and others like him who were fired because they took part in lawful and protected union activities can still be denied their lost wages under the National Labor Relations Act.

In doing so, the Court made it far less likely that other employees like Mr. Castro, whose employers have deliberately broken the law, will ever come forward to assert their workplace rights. The Court took away the primary and most meaningful incentive such workers have for risking their employers' ire and the consequent possibility of deportation-an award of back pay to compensate them for the income they lost after being unlawfully fired. It also took away from federal labor law enforcement agencies the best and most effective deterrent they have to keep lawbreaking employers from ever repeating their actions.

Had the Court followed the abundant and longstanding legal precedent supporting the availability of back pay to undocumented workers-including its own 1984 decision in a virtually identical case-it would have decided differently. Instead, the Hoffman majority attempted to mask the intellectual dishonesty of its opinion in political rhetoric. And in the process-based on nothing more than a visceral and ideological anti-immigrant mindset-it demolished well-established federal policy on workplace rights and immigration. But no national purpose is served by relegating undocumented workers to a substandard legal status. Quite the opposite.

The Hoffman majority thumbed its nose at Congress. When Congress passed the Immigration Reform and Control Act (IRCA) in 1986, which made it illegal to employ undocumented workers, it also did a little-known thing: Congress clearly stated that those workers enjoyed the full coverage of federal employment statutes. This includes the important laws prohibiting discrimination, requiring the payment of minimum wages, and-until now-any collective action by employees to improve their workplaces. Congress did so because it recognized a simple and obvious fact: If undocumented workers are not equally covered, dishonest employers will have a strong legal and economic incentive to hire undocumented workers, instead of those who are legally authorized.

If you can exploit with impunity workers who have no rights, then why not hire someone you can freely refuse to pay after a week's work? Why not hire someone you can sexually harass, who has no right to be protected from that harassment? Why not hire people to work in unsafe conditions who, if they are injured or fall ill, have no place to go, no basis for protest?

To avoid creating a perverse incentive to hire workers who would be uniquely exploitable, Congress consciously leveled the playing field. It specified that undocumented workers would continue be covered by federal labor and employment law-precisely in order to stem illegal immigration. Without chiseling employers seeking out undocumented labor, workers without papers would find it less attractive to seek work here. Even the Bush Administration argued in Hoffman that undocumented workers are entitled to back pay when they are unlawfully fired, for exactly the same reasons as Congress put forth in 1986.

At the same time, Congress furthered good workplace practices by ensuring that people who experience workplace injustice would be able to come forward and assist the federal government in identifying and prosecuting lawbreaking employers. Those abuses would never come to light without workers who had a right to complain.

In the Hoffman decision, the Supreme Court took a big step toward creating exactly the uniquely exploitable underclass Congress tried to eliminate. In effect, the Court has made it profitable to knowingly employ undocumented workers. And in so doing it has opened the door to a potential flood of employment abuses, since more violations of law can be countenanced with less legal liability. Without the deterrent threat of back pay judgments, employers now know they can get away with the proverbial slap on the wrist-in most cases, an order to never do wrong again and to put up a sign to that effect.

Hoffman Plastic Compounds v. National Labor Relations Board thus sends the signal to employers that breaking the law will now make business sense. Conversely, the message to undocumented employees who have been subjected to workplace abuses is: Don't bother filing a claim or exercising your legal rights, because even if you ultimately prevail, you will not be made whole for the risk. You might even get deported for your trouble. The Rehnquist majority revealed its unprincipled core when it lashed out against the those whom Justice Anthony Kennedy (now a member of the Hoffman majority) described in 1979-in a case restoring six illegally-fired undocumented workers to their jobs-as "the very persons who most need protection from exploitative employer practices."