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VIII. The Impact of Hoffman Plastic on Workers’ Rights

Under international human rights and labor rights standards, all workers—whatever their immigration status—have the same basic rights to organize and to bargain collectively. Yet in 2002, the U.S. Supreme Court issued a decision in Hoffman Plastic Compounds v. NLRB that strips away from millions of undocumented workers in the United States their principal protection for and means of vindicating those rights.327  The decision transformed a crisis in immigration policy into a human rights problem.

The Supreme Court’s five-four ruling held that an undocumented worker, because of his immigration status, was not entitled to back pay for lost wages after he was illegally fired for union organizing.328  The five-justice majority said that immigration policy and labor law were in conflict and that enforcing immigration law takes precedence over enforcing labor law. The four dissenting justices said there was not such a conflict and that the “backpay order will not interfere with the implementation of immigration policy. Rather, it reasonably helps to deter unlawful activity that both labor laws and immigration laws seek to prevent.”329

The Hoffman decision and the continuing failure of the U. S. administration and Congress to enact legislation to correct such discrimination puts the United States squarely in violation of its obligations under the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work and under ILO Conventions 87 and 98.

Most undocumented workers are employed in workplaces with documented migrant workers and with U.S. citizens. Before the Hoffman decision, union representatives assisting workers in an organizing campaign could say to all of them, “we will defend your rights before the National Labor Relations Board and pursue back pay for lost wages if you are illegally dismissed.” Now they must add: “except for undocumented workers—you have no protection.” The resulting fear and division when a group of workers is deprived of their protection of the right to organize has adverse impact on all workers’ right to freedom of association and right to organize and bargain collectively.

The Hoffman decision also promotes new and perverse forms of discrimination. It creates an incentive for employers to hire undocumented workers because of their new vulnerability in union organizing efforts, rather than hiring documented workers or citizens. As is universally the practice in the wink-and-nod world of employer recruitment of undocumented workers, the employer just takes a cursory look at work papers that appear valid on their face so that he has a defense against charges of “knowingly” hiring an unauthorized worker.

The resulting discrimination is two-fold: first, discrimination against documented workers and citizens who are not hired because of their status, followed by discrimination against undocumented workers who are hired because of their status. To stop an organizing campaign from even getting off the ground, employers can threaten to dismiss undocumented workers, telling them they have no protection under the NLRA. And then if workers do get a campaign off the ground, employers can carry out the threat, dismissing them with impunity.

With good reason, the Hoffman decision has exacerbated fears in immigrant workers’ communities that they lack workplace rights and protections. Employers have made threats against workers, telling them of the decision and emphasizing that they can be dismissed for trade union organizing with no right to reinstatement or back pay. Workers have abandoned trade union organizing campaigns because of the fear instilled by the Hoffman decision. Employers have also sought to expand the scope of Hoffman, threatening workers with dismissal if they complain about minimum wage or overtime violations, health and safety violations, or any other claim before a government labor law enforcement agency.330

In the wake of the Hoffman decision, worker protection agencies such as the Department of Labor and the Equal Employment Opportunity Commission have reaffirmed their commitment to enforcing the laws under their jurisdiction without regard to immigration status.331  But some courts are endorsing employer efforts to use the logic of Hoffman to deny undocumented workers a wide array of compensation or monetary damage awards that would otherwise be due them. In a pregnancy discrimination case in New Jersey, for example, a state court denied a victim her back pay, economic damages, damages for emotional distress and punitive damages, leaving her with nothing except a bill from her lawyer. “We agree that [Hoffman] bars plaintiff’s economic damages . . . we see no basis for distinguishing her related non-economic damages and conclude that they, too, are barred.”332  An Illinois court denied back pay to a group of Chicago workers fired for filing an overtime pay claim, saying “The Supreme Court has made it clear that awarding back pay to undocumented aliens contravenes the policies embedded in [immigration law].”333 

An Oklahoma court ruled that an undocumented worker injured on an Oklahoma job site was not entitled to vocational rehabilitation and medical treatment in the United States.334  A California court ruled that under Hoffman, a worker fired when she told her employer she was going to have a cancer operation “may not recover for wrongful termination.”335  A New York court decided that an undocumented worker could not recover the $1,000 promised him for ten days’ work by a landscaping employer, but could only obtain the minimum wage for his labor.336

Another New York court denied lost wages to an immigrant worker from Poland who brought a claim to recover damages for injuries sustained when he fell from a scaffold while installing siding. His claim was based on the defendants’ alleged negligence and other labor law violations. The defendants asked the court to compel the immigrant to reveal his immigration status, and the court granted their request. The worker admitted that he did not have any of the required documents to establish his work authorization.

The court rejected the worker’s argument that New York law specifically permits the recovery of lost wages by undocumented workers and that the Hoffman decision does not apply to his case because it was not intended to impact state laws. The judge said, “Although New York law has, in the past, permitted the recovery of lost wages for undocumented illegal aliens . . . the interpretation afforded to the Immigration Reform and Control Act (IRCA) by the United States Supreme Court in Hoffman would appear to require this court to conclude that plaintiff should not be permitted to recover for lost wages given his inability to prove he is legally authorized to work in this country.”337

Not all the court cases have gone against worker plaintiffs. Undocumented workers generally remain covered under state workers’ compensation laws (though this does not ease their reluctance to file claims for fear of deportation).338  However, some state courts, citing Hoffman, have limited coverage to medical care while denying weekly wage replacement benefits.339

In a case involving allegations of illegal trafficking in persons and involuntary servitude, a judge in New York refused to allow defendants to conduct discovery into a worker’s immigration status. The plaintiff sued her employers, alleging that they recruited her in India to come to the United States to perform domestic labor. On her arrival, they confiscated her passport and paid her the equivalent of 22 cents per hour during her first eight months of employment. For her remaining seventeen months of service, she was paid a total of $50. When defendants sought to show that their domestic servant was undocumented, the court issued a protective order prohibiting such inquiry, noting that:

[A]llowing parties to inquire about the immigration status of other parties, when not relevant, would present a danger of intimidation [that] would inhibit plaintiffs in pursuing their rights … It is entirely likely that any undocumented [litigant] forced to produce documents related to his or her immigration status will withdraw from the suit rather than produce such documents and face … potential deportation.340

Tyson Foods and the Hoffman Plastic Defense

Tyson Foods unsuccessfully tried to avail itself of the Hoffman defense in a lawsuit brought by a chicken catcher on a Tyson contract farm who was injured when a Tyson employee ran into him with a forklift. The plaintiff, Gustavo Tovar Guzman, suffered spinal and nerve damage and endured a potentially paralyzing surgery to regain some limb movement. According to his testimony, his permanent physical handicap limits him to working in minimum-wage jobs.

Guzman sued Tyson for negligence. Tyson first argued that there was no negligence, but a jury found there was. Tyson did not require the chicken-catchers to wear reflective vests, even though these operations were conducted in the dark. Tyson also did not have any system of guidelines or procedures in place to prevent accidents such as the one involving Guzman.

Then Tyson argued that it had no control over Guzman’s working conditions. An exchange between Tyson’s attorney and Guzman’s brother, Jose Ramiro Tovar, suggests the company’s line of defense on this point:341

Q: When you were working in the chicken houses at eleven years old, you weren’t working as a Tyson employee, were you?

A: I was working for Jerry Collum. Tyson I think.

Q: So you were working for Jerry Collum, is that right?

A: I was eleven years old. I didn’t know who I was working for. I just know that Jerry give me my check.

Q: So you were working for Jerry Collum, not Tyson, right?

A: Tyson, yes.

Q: Who are you working for now? Jerry Collum?

A: Yes, sir.

Q: Are you working for the same person now that you were working for when you were eleven years old?

A: Yes, sir.

Q: So you were working for Jerry Collum when you were eleven years old, right?

A: Yes, sir.

However, the court determined that Tyson exercised control over the working conditions on Jerry Collum’s farm and was therefore liable, consistent with the legal rule that, “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

The jury awarded Guzman $745,496 in damages, which included damages for lost earning capacity. Tyson appealed the damage award, arguing that Hoffman Plastic “militates against any award of wages as damages to undocumented alien laborers.”

The court rejected that argument and found that Hoffman “only applies to an undocumented alien worker’s remedy for an employer’s violation of the [National Labor Relations Act] and does not apply to common-law personal injury damages.” The court further held that “Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for earning capacity.”342

Employment law in the wake of Hoffman Plastics remains in flux, and immigrant workers’ rights remain highly at risk. Many of the favorable decisions are on appeal to state and federal appeals courts, and might return to the U.S. Supreme Court for ultimate resolution. Employers appear resolute in their effort to extend the logic of Hoffman to defeat any meaningful relief for victims of discrimination who lack proper work authorization or who are afraid to have their immigration status become an issue.343 While they are willing to employ these workers and benefit from their labor, they seek to exploit their vulnerability under Hoffman to deny them payments they would have to make to any other worker.

International Human Rights Rulings

Two authoritative international human rights bodies have examined the Hoffman ruling and concluded that conditioning remedies for freedom of association violations on immigration status violates workers’ human rights. First, in September 2003, the Inter-American Court of Human Rights (IACHR) issued an advisory opinion in a case filed by Mexico in the wake of the Hoffman decision. The IACHR held that undocumented workers are entitled to the same labor rights, including wages owed, protection from discrimination, protection for health and safety on the job, and back pay, as are citizens and those working lawfully in a country. The IACHR said that despite their irregular status,

If undocumented workers are contracted to work, they immediately are entitled to the same rights as all workers.  … This is of maximum importance, since one of the major problems that come from lack of immigration status is that workers without work permits are hired in unfavorable conditions, compared to other workers.344

The IACHR specifically mentioned several workplace rights that it held must be guaranteed to migrant workers, regardless of their immigration status:

In the case of migrant workers, there are certain rights that assume a fundamental importance and that nevertheless are frequently violated, including: the prohibition against forced labor, the prohibition and abolition of child labor, special attentions for women who work, rights that correspond to association and union freedom, collective bargaining, a just salary for work performed, social security, administrative and judicial guarantees, a reasonable workday length and adequate labor conditions (safety and hygiene), rest, and back pay.345

The IACHR held that, as part of its principal obligation to interpret the Charter of the Organization of American States (OAS Charter), it must integrate pertinent provisions of the American Declaration of the Rights and Duties of Man, and other international conventions on human rights in the American States. It further held that its consultative decision should be binding on all members of the Organization of American States (OAS), whether or not they have ratified certain of the Conventions that formed the basis of the opinion. It based its decision on the non-discrimination and equal protection provisions of the OAS Charter, the American Declaration, the ICCPR, the American Convention on Human Rights and the Universal Declaration of Human Rights.

In a second major international tribunal ruling in November 2003, the ILO’s Committee on Freedom of Association issued a decision that the U.S. Supreme Court’s Hoffman ruling violates international legal obligations to protect workers’ organizing rights. The Committee concluded that “the remedial measures left to the NLRB in cases of illegal dismissals of undocumented workers are inadequate to ensure effective protection against acts of anti-union discrimination.” The Committee recommended congressional action to bring U.S. law “into conformity with freedom of association principles, in full consultation with the social partners concerned, with the aim of ensuring effective protection for all workers against acts of anti-union discrimination in the wake of the Hoffman decision.”346

[327] Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002).

[328] The Court’s ruling overturned a decision by the National Labor Relations Board that had been upheld by a federal appeals court. See Hoffman Plastic Compounds, Inc., 326 NLRB 1060 (1998); Hoffman Plastic Compounds, Inc. v. NLRB, 237 F.3d 639 (2001).

[329] Ibid., Breyer, J., dissenting; emphasis in original.

[330] See Alfredo Corchado and Lys Mendez, “Undocumented workers feel boxed in; They say they have no rights to damages from labor abuses,” Dallas Morning News, July 14, 2002, p. 1J; Nancy Cleeland, “Employers Test Ruling on Immigrants; Labor: Some firms are trying to use Supreme Court decision as basis for avoiding claims over workplace violations,” Los Angeles Times, April 22, 2002, at1; David G. Savage and Nancy Cleeland, “High Court Ruling Hurts Union Goals of Immigrants; Labor: An employer can fire an illegal worker trying to organize, the justices decide; Exploitation is feared,” Los Angeles Times, March 28, 2002, p. 20.

[331] See U.S. Department of Labor Wage and Hour Division, Fact Sheet #48, “Application of U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastics decision on laws enforced by the Wage and Hour Division,” July 12, 2002, available online at:, accessed on November 17, 2004; and EEOC press release, “EOOC Reaffirms Commitment to Protecting Undocumented Workers from Discrimination,” June 28, 2002, available online at:, accessed on November 17, 2004.

[332] See Crespo v. Evergo Corp., N.J. Super. Ct. App. Div., No. A-3687-02T5 (February 9, 2004).

[333] See Rentería v. Italia Foods Inc., N.D. Ill., No. 092-C-495 (August 21, 2003).

[334] See Cherokee Industries, Inc. v. Alvarez, Ok. Ct. App., No. 99173 (January 29, 2004).

[335] See Morejon v. Terry Hinge and Hardware, 2003 WL 22482036 (Cal. App, 2 Dist. 2003).

[336] See Ulloa v. Al's All Tree Service, Inc., 2003 WL 22762710 (N.Y. Dist. Ct. 2003).

[337] See Stanislaw Majlinger v. Casino Contracting, et al., 2003 N.Y. Misc. LEXIS 1248 (Oct. 1, 2003).

[338] See, for example, Ruiz v. Belk Masonry Co., et al., 559 S.E.2d 249, 2002 N.C. App. LEXIS 50 (N.C. App. 2002), where the North Carolina Supreme Court affirmed the right of undocumented workers to receive workers’ compensation benefits.

[339] See, for example, Sanchez et al. v. Eagle Alloy, Inc., 658 N.W.2d 510 (Jan. 7, 2003).

[340] See Topo v. Dhir, 210 F.R.D. 76 (S.D. N.Y. 2002). For a comprehensive report on human rights abuses against household domestic workers in the United States, see Human Rights Watch, Hidden in the Home: Abuse of Domestic Workers with Special Visas in the United States (2001), available online at:, accessed on November 17, 2004.

[341] This testimony also raises an issue of child labor. In another instance involving Smithfield Foods, a thirteen-year-old girl was hired in 2000 at the Tar Heel, North Carolina plant using false identity papers showing her age as eighteen. She worked full time as a second shift employee on a production line. Smithfield management attributed the hiring to failure to fully check her status at a time when “the company needed employees fast.” The Labor Department inspector’s report on the case said, “I told the employer that I realized the employee in question had presented false documents to obtain employment at Smithfield. However, I told [the Smithfield human resources manager] that I had seen and spoken to this person and it seemed rather obvious that this was a little girl who was not eighteen, but rather she appeared more like her real age of thirteen.” See U.S. Department of Labor, Wage and Hour Division, “Compliance Action Report,” Case No. 1075851 (August 23, 2000) (on file with Human Rights Watch). Human Rights Watch is unaware of evidence suggesting that such abuses, though they occur in the meat and poultry industry, are systemic in the industry, and child labor issues are not addressed in this report. For a report on systematic child labor violations in the United States outside the meat and poultry industry, see Human Rights Watch, Fingers to the Bone: United States Failure to Protect Child Farmworkers (2000), available online at:, accessed on November 17, 2004.

[342] See Tyson Foods, Inc. v. Guzman, 116 S.W. 3d. 233 (2003). 

[343] For consistent, updated reporting on post-Hoffman legal developments, see web sites of the National Employment Law Project at, and of the National Immigration Law Clinic,

[344] See Inter-American Court of Human Rights, Legal Condition and Rights of Undocumented Migrant Workers, Consultative Opinion OC-18/03 (September 17, 2003).

[345] Ibid.

[346] See ILO Committee on Freedom of Association, Complaints against the Government of the United States presented by the American Federation of Labor and the Congress of Industrial Organizations (AFL-CIO) and the Confederation of Mexican Workers (CTM), Case No. 2227: Report in which the committee requests to be kept informed of developments (November 20, 2003).

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