Tales Of Hoffman
As border patrol groups roam the Southwest, demonstrations tie up city streets and debate occupies Congress, the issue of illegal immigrants’ rights grinds on.
Even the courts are involved, and increasingly they are turning to a 2002 U.S. Supreme Court ruling to spell out the extent of undocumented workers’ rights.
The decision, Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137, denied back pay to an illegal immigrant who claimed his employer violated federal labor law when it fired him for union activities. In the 5-4 ruling, the court through Chief Justice William H. Rehnquist held that awarding back pay to an undocumented worker “not only trivializes the immigration laws, it also condones and encourages future violations.”
The court concluded that federal immigration laws—especially the 1986 Immigration Reform and Control Act, which punishes employers who hire undocumented immigrants—trumped any statutory protections under the National Labor Relations Act. The IRCA provides that employers can face civil fines up to $10,000 for a repeat violation and, if there is a “pattern or practice of violations,” criminal penalties up to six months in prison.
Back Pay And Beyond
But the case continues to raise controversial issues involving immigrant rights and how broadly federal and state courts should interpret the laws. Meanwhile, businesses are using the ruling in Hoffman to defend against employment-related claims such as back pay, standing to sue, and even the definition of employee.
“This issue presents a perfect example of conflicting policies,” says Lawrence Rosenthal, an assistant professor at Northern Kentucky University’s Salmon P. Chase College of Law, who writes about employment law issues. “On the one hand, we do not want employers to discriminate against their workers and avoid repercussions other than those provided for by IRCA. And we also do not want to encourage employers to hire undocumented workers, knowing that they will not have to pay damages if they discriminate against them.
“On the other hand, we don’t want undocumented workers violating federal immigration laws and essentially being rewarded for doing so by being able to recover monetary awards to which they would ordinarily not be entitled,” he says.
For their part, employee attorneys contend that Hoffman was a narrow decision that should not be extended beyond the NLRA. Employer attorneys counter that Hoffman should apply in other contexts, including workers’ compensation, personal injury and employment discrimination statutes such as Title VII.
“There is a real concern that some courts have misinterpreted Hoffman and expanded it too far,” says Rebecca Smith, coordinator of the National Employment Law Project’s Immigrant and Nonstandard Worker Project. “There is a patchwork quilt of decisions that have interpreted and applied Hoffman in different ways. Overall, the courts have limited Hoffman to the NLRA context. However, some courts have made inroads with Hoffman that are troubling.”
One example is Crespo v. Evergo Corp., 841 A.2d 471 (2004). A New Jersey appeals court ruled that an illegal alien who used a false Social Security number to obtain a job could not recover under a state anti-discrimination law when she claimed the employer would not allow her to return to work after maternity leave. The appeals court, “in light of Hoffman’s strong enforcement of the policies served by IRCA,” rejected Rosa Crespo’s claims.
“In the Crespo decision, we extended the Hoffman decision to cases involving allegations of discrimination,” says Hackensack, N.J.-based attorney Warren J. Kaps, who represented Evergo. “The theory of our case and in our argument before the court was that where an illegal alien who should not have been hired in the first place files a claim for discrimination, they should not be entitled to any relief on the basis that it was improper and illegal to hire them in the first place.”
Several Steps Further
Kaps cites the example of an illegal alien who presents forged Social Security documents to obtain jobs and then sues for discrimination. “Our theory is that the employee should not be able to pursue such claims on the basis that it was improper and illegal to hire them in the first place.”
That hypothetical echoes the background in Hoffman. Jose Castro had obtained employment at the company by providing the birth certificate of a friend. He sued after the company laid him off for participating in labor organizing activities.
An administrative law judge denied Castro’s claims, partly because of the IRCA. However, the National Labor Relations Board reversed, finding that undocumented workers should be treated the same as other workers for purposes of the NLRA. After the 9th U.S. Circuit Court of Appeals at San Francisco denied the employer’s petition for review, the Supreme Court entered the fray.
But Crespo is not the only decision to have extended Hoffman. “We have seen some very questionable state court decisions that take massive leaps of legal logic and expand Hoffman way beyond its limited holding,” says Christopher Ho, senior staff attorney at the Legal Aid Society-Employment Law Center in San Francisco, which represents undocumented workers.
“For example, one California state trial court dismissed a worker’s claim for wages he had earned, but was never paid, on the basis that Hoffman somehow deprived him of standing to sue in the first place,” Ho says. “That’s a pretty remarkable conclusion to draw from a case that in fact accepted and reaffirmed that undocumented workers were covered under the law.”
Other courts have limited Hoffman to the NLRA. For example, the Minnesota Supreme Court ruled in Correa v. Waymouth Farms Inc., 664 N.W.2d 324 (2003), that Hoffman did not allow an employer to refuse to pay workers’ compensation benefits to an undocumented worker. And a federal district court ruled in Flores v. Amigon, 233 F. Supp. 2d 462 (E.D.N.Y. 2002), that the Hoffman decision did not limit undocumented workers’ rights under the Fair Labor Standards Act.
One persistent post-Hoffman issue has been the extent to which employers may inquire about a worker’s immigration status during the discovery phase of a discrimination lawsuit. In Rivera v. NIBCO Inc., 364 F.3d 1057 (2004), the 9th Circuit prevented discovery of the immigration status of the plaintiffs because of the chilling effect it would cause on immigrant workers seeking to challenge discriminatory practices.
“There is a very real issue of chilling,” Smith says. “Given the overall climate on immigration and the inclination of employers to take a sudden interest in immigration status when workers complain, many workers are hesitant to bring complaints for very real abuses. They understandably fear retaliation based on immigration status.” However, employment attorneys contend that immigration status is relevant. “In every case involving employment issues, we include in our interrogatories questions relating to immigration status, whether the individual is a citizen of the United States and, if not, do they have a green card,” Kaps says.
“It is probably good that some undocumented aliens are chilled from bringing lawsuits involving discrimination because of fear about the discovery of their immigration status,” he continues. “Otherwise more people would be encouraged to submit false documents to prospective employers. There are undoubtedly thousands of persons who do not have valid green cards and do not seek work. These are honest people who are not seeking to present false documents to prospective employers and are law-abiding individuals.” Rosenthal notes that employers should be able to discover the information for litigation and strategy reasons: “Although the 9th Circuit in NIBCO believed that such an inquiry was not relevant, employers who are involved in litigation should be entitled to discover what potential liability they face. If a court is going to apply Hoffman to Title VII cases, allowing employers to discover this information during discovery would give them a better idea about how to determine an appropriate litigation or settlement strategy.”
Eternal Issues
As with the national immigration debate, Hoffman and the issues it raises are bound to persist.
“There are many threshold issues that have not been finally resolved,” Ho says. “These include whether Hoffman applies to statutes other than the NLRA and what remedies are available under these various statutes.”
Says Smith: “I believe Hoffman was wrongly decided. The conflict between immigration law and the NLRA is not such that the answer is to leave vulnerable workers out in the cold. The effect of the decision is that employers can hire undocumented workers with a wink and a nod and then suddenly become concerned about immigration status when a worker complaint is filed. Employers ought not to be able to compound retaliation by further retaliating against workers based on immigration status.”
“I think it will take a few more years to resolve these serious questions,” Ho says.
David L. Hudson Jr. is a staff attorney with the First Amendment Center at Vanderbilt University in Nashville.
