Rural Laws: April, 2002 - Number #5

The US Supreme Court in March 2002 ruled that unauthorized workers who are wrongly fired for union organizing are not entitled to back pay for the time they are jobless after their illegal firing. In effect, the court ruled that a worker's violation of immigration laws was more serious than an employer's violation of labor laws. (www.supremecourtus.gov/opinions/01pdf/00-1595.pdf)

In a 5-4 decision, Chief Justice William H. Rehnquist wrote: "awarding back pay to illegal aliens runs counter to policies underlying" immigration law. He continued, "It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations." He rejected the NLRB's plea for authority "to award back pay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned and for a job obtained in the first instance by a criminal fraud."

The case involved an unauthorized Mexican, Jose Castro, whose real name is Samuel Perez. He presented a false Texas birth certificate to get a job at Hoffman Plastic Compounds in Los Angeles in 1988, and was fired unlawfully for handing out union authorization cards to fellow employees. Hoffman argued that, since it did not learn that Castro/Perez was unauthorized until he admitted his status in compliance proceedings, Castro/Perez was not owed back wages for the time he was out of work because he was not authorized to work in the US.

The National Labor Relations Board ordered Hoffman to provide Castro/Perez with $67,000 in lost wages. The U.S. Court of Appeals for the District of Columbia agreed that the NLRB could order a back-pay remedy for employers who violate the rights of unauthorized workers. The US government and US unions urged the Supreme Court to ratify the authority of the NLRB to order an employer to provide back pay for unauthorized workers who are fired in violation of labor laws. Paul R.Q. Wolfson, assistant to the US solicitor general, said that this remedy was necessary to prevent exploitation: "there is ... an inseverable connection between illegal immigration, the availability of jobs and poor working conditions that illegal immigrants are willing to take in the United States."

Union leaders denounced the decision. United Farm Workers President Arturo S. Rodriguez, for example, said that the decision will encourage employers to hire unauthorized workers because they know that, if they violate worker rights, "there will be no meaningful remedy." Rodriguez said that the Court's ruling would prevent half of California crop workers from receiving back pay and make whole remedies for bad faith bargaining allowed under California's Agricultural Labor Relations Act.

The Hoffman Plastics case may be the most significant labor-immigration case since the Immigration Reform and Control Act was enacted in 1986. In the 1984 Sure-Tan decision, the US Supreme Court confirmed that unauthorized workers are protected by the NLRA: "If undocumented alien employees were excluded from. . .protection against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all employees and impeding effective collective bargaining."

However, the Supreme Court reversed an NLRB order requiring Chicago tannery Sure-Tan to rehire unauthorized workers who had been reported by their employer to the INS in retaliation for their union activities, and returned to Mexico. The Supreme Court reasoned that, if the NLRB ordered employers to reinstate unauthorized workers who were outside the US, those who eluded the INS and returned to the US would be guaranteed a job, encouraging illegal immigration.