Greenberg Traurig, LLP  




GT Business Immigration Observer
January 2003

Protection Of Immigrant Workers by the Department of Labor in the Aftermath of Hoffman Plastic When Workers Are "Undocumented"

As reported in the September 2002 edition of the Immigration Observer, in March 2002 the Supreme Court held that back pay cannot be awarded to undocumented workers, in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, No. 00-1595, 2002 WL 1275. The decision appears to have stripped the Equal Employment Opportunity Commission (EEOC) and the National Labor Relation Boardís (NLRB) of enforcement capabilities.

In Hoffman, the Supreme Court held that NLRB lacked authority to order back pay to an undocumented worker who was laid off because of union activities, in violation of the National Labor Relations Act (NLRA). According to the Court, "federal immigration policy . . . foreclosed the NLRB from awarding back pay to [an] undocumented alien who had never been legally authorized to work." Specifically, the Court referenced laws relating to I-9 documentation and an employerís requirement to verify the identity and employment authorization of all employees. I-9 regulations forbid employers from knowingly hiring individuals who do not have employment authorization. In Hoffman, the employee had presented false documents when hired. As a result, the Court concluded that back pay for unlawful termination could not be Awarded when the wages could not have been lawfully earned.

A recently released Fact Sheet from the Wage and Hour Division of the Employment Standards Administration of the Department of Labor now provides an explanation of the effect of this decision on the application of some labor laws that the Department of Labor (DOL) is charged to enforce in an effort to protect all workers. According to the Fact Sheet the Court "only interpreted one law, the NLRA." Under this reading, undocumented workers still have rights under labor laws (just not under the NLRA).

"The Department's Wage and Hour Division will continue to enforce the FLSA [Fair Labor Standards Act] and MSPA [Migrant and Seasonal Agricultural Worker Protection Act] without regard to whether an employee is documented or undocumented." The rationale for this determination is that enforcement of these laws relate to back pay for hours an employee has actually worked, under laws that require payment for such work. This is different from back pay that can be required in a claim under the NLRA where back pay is sought for time an employee would have worked if he had not been illegally discharged, under a law that permitted but did not require back pay as a remedy. Basically, this means that the DOL is still willing to step up to the plate when it comes to pursuing claims against employers by any workers seeking pay for work already performed. This is an important interpretation and a victory for foreign workers.

From the DOLís statements in Fact Sheet #48, the FLSA and MSPA "provide core labor protections for vulnerable workers." By that definition alone, it is the undocumented workers throughout the U.S. who need this protection most. This is specially true at a time when the Department of Justice is initiating programs like special registration and providing local and state law enforcement with the authority to enforce federal immigration laws when they come in contact with undocumented immigrants or those who have "fallen out of status." These types of initiatives are likely to lead to fewer crimes and mistreatment being reported by immigrants and a greater fear and mistrust of local, state and federal government officials. It appears that there are not many places or many people within government agencies where an undocumented worker can turn to for protection from abuse, hopefully, the DOLís commitment to protecting workers will transcend immigration status.

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