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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

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