Under international human rights and labor rights standards, all workerswhatever their immigration statushave 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 Courts 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 ILOs 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 workersyou 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 plaintiffs 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 workers 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 workers 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
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.
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 ILOs Committee on Freedom of Association issued a decision that the U.S. Supreme Courts 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
 Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002).
 The Courts 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).
 Ibid., Breyer, J., dissenting; emphasis in original.
 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.
 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: http://www.dol.gov/esa/regs/compliance/whd/whdfs48.htm, accessed on November 17, 2004; and EEOC press release, EOOC Reaffirms Commitment to Protecting Undocumented Workers from Discrimination, June 28, 2002, available online at: http://www.eeoc.gov/press/6-28-02.html, accessed on November 17, 2004.
 See Crespo v. Evergo Corp., N.J. Super. Ct. App. Div., No. A-3687-02T5 (February 9, 2004).
 See Rentería v. Italia Foods Inc., N.D. Ill., No. 092-C-495 (August 21, 2003).
 See Cherokee Industries, Inc. v. Alvarez, Ok. Ct. App., No. 99173 (January 29, 2004).
 See Morejon v. Terry Hinge and Hardware, 2003 WL 22482036 (Cal. App, 2 Dist. 2003).
 See Ulloa v. Al's All Tree Service, Inc., 2003 WL 22762710 (N.Y. Dist. Ct. 2003).
 See Stanislaw Majlinger v. Casino Contracting, et al., 2003 N.Y. Misc. LEXIS 1248 (Oct. 1, 2003).
 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.
 See, for example, Sanchez et al. v. Eagle Alloy, Inc., 658 N.W.2d 510 (Jan. 7, 2003).
 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: http://www.hrw.org/reports/2001/usadom, accessed on November 17, 2004.
 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 inspectors 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: www.hrw.org/reports/2000/frmwkr, accessed on November 17, 2004.
 See Tyson Foods, Inc. v. Guzman, 116 S.W. 3d. 233 (2003).
 For consistent, updated reporting on post-Hoffman legal developments, see web sites of the National Employment Law Project at www.nelp.org, and of the National Immigration Law Clinic, www.nilc.org.
 See Inter-American Court of Human Rights, Legal Condition and Rights of Undocumented Migrant Workers, Consultative Opinion OC-18/03 (September 17, 2003).
 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).