No back pay for the undocumented under the labor laws

This may surprise people, but undocumented immigrants (also known as illegal aliens) can sue under the labor law. But if an undocumented worker is discharged unfairly, can he sue for back pay? The answer is no.

The case is Palma v. National Labor Relations Board, decided on July 10. The employees were fired in violation of the National Labor Relations Act. They had engaged in protected concerted labor activity, for which they were unlawfully discharged in 2003. The administrative hearing officer awarded them back pay. The NLRB reversed that opinion on authority of the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). Hoffman Plastic gets a fresh look from the Second Circuit.

The Supreme Court said in Hoffman Plastic that undocumented immigrants cannot get back pay because such relief is foreclosed by federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986 (IRCA), which makes it illegal for employers to hired the undocumented. The former employees in Palma try to get around Hoffman Plastic by arguing that they can get back pay because they did not procure their jobs through the use of fraudulent documentation. (In the Hoffman case, the plaintiff got his job through fraudulent documents). This is not a bad argument. Lawyers are constantly trying to distinguish Supreme Court rulings that go the other way. This was one way to do it, but the Second Circuit is not buying it. It reasons,

Although petitioners urge us to distinguish the present case from Hoffman Plastic because in that case Castro himself had violated IRCA, whereas the petitioners here did not present fraudulent documents, the Hoffman Plastic Court's discussion of the direct conflicts between IRCA and awards of backpay is equally applicable to aliens who did not gain their jobs through such fraud but who are simply present in the United States unlawfully. The Court pointed out that awarding backpay would "not only trivialize[] the immigration laws," but would "also condone[] and encourage[] future violations."

The Court of Appeals (Kearse, Lohier and Kaplan [D.J.]) further tells us that "Given petitioners' presence in the United States without documentation, their seeking damages stemming from an unlawful employment relationship, and--assuming there has been no change in their undocumented status--their obtaining new unlawful employment following their terminations by Mezonos, awards of backpay would have the same ill-advised propensity discussed in Hoffman Plastic for condoning prior violations of the immigration laws and encouraging future violations."

The employees might be entitled to conditional reinstatement. The case is remanded to the NLRB to take up that issue. The employees will need the proper documentation to get their jobs back. The Second Circuit says, "although the Hoffman Plastic Court did not directly deal with an issue of  reinstatement, its discussion plainly did not foreclose relief in the nature of an order for reinstatement conditioned upon an employee's submission of documentation as required by IRCA."