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.
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