Undocumented Workers:  Preserving Rights and Remedies after Hoffman Plastic Compounds v. NLRB

(April 2003)
Co-authored by Rebecca Smith and Amy Sugimori of the National Employment Law Project (NELP), and Ana Avendaño & Marielena Hincapiė of the National Immigration Law Center (NILC)

To view a .pdf version of this document, click here.

The U.S. Supreme Court’s recent decision in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002), that undocumented workers are not entitled to back pay awards if they are illegally fired from their jobs in retaliation for union activities, has had a devastating effect in immigrant communities nationwide.  Moreover, it has emboldened employers to argue in a variety of contexts that immigrant workers simply have NO employment rights in the United States.  If employers succeed in such arguments, we will have created a two-tier legal system in the United States, where employers can seek out, hire, exploit, and then fire, all with impunity, any undocumented worker who dares to assert his or her rights.  This will do harm to workers themselves, to law-abiding employers, to enforcement of immigration laws, and to a society that prides itself on the principle of equality.

This publication gives background information on the number and industry distribution of undocumented workers in the U.S. economy, the perverse incentive system that has been created by the employer sanctions provisions of the immigration law, and the developing law both pre- and post-Hoffman, as well as ideas for advocacy in individual cases.