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Circuit Court Upholds Back Pay Award to Undocumented Worker Fired for Union Organizing
by Carl R. Baldwin

On January 16, 2001 the Court of Appeals for the District of Columbia Circuit upheld a ruling of the National Labor Relations Board (NLRB, or Board) that awarded partial back pay to an undocumented worker fired for Union organizing. Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, No. 98-1570. The case arose when the employer fired several workers who had engaged in Union organizing activities. The Board found multiple violations of the labor laws, and prepared to order the traditional remedy of reinstatement and back pay. When the Board found out during a hearing, however, that one of the workers was undocumented, it declined to order reinstatement for that worker, so as not to contravene IRCA (The Immigration Reform and Control Act of 1986). It did award back pay, however,for the period of time prior to the employer’s discovery of the worker’s undocumented status, and the employer appealed from that portion of the Board’s decision.

The employer argued that the case of Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) and IRCA bar the award of back pay to undocumented workers who are victims of discrimination (called “discriminatees”). The court disagreed: “Properly understood, Sure-Tan supports backpay awards to undocumented discriminatees so long as the awards reflect the discriminatees’ actual losses.” Sure-Tan, a case decided prior to IRCA, brought into sharp focus the retaliation of an employer who was perfectly happy to employ undocumented workers until they voted to be represented by a Union. When that happened, and after the Board certified the Union as the collective-bargaining representative, the employer contacted the INS and asked it to check the immigration status of his workers. The INS did so, found five undocumented workers, and placed them under proceedings. The workers elected to take voluntary departure, and, as the Court observed: “By the end of the day, all five employees were on a bus ultimately bound for Mexico.”

With respect to IRCA, the Hoffman court, citing with approval a decision of the Ninth Circuit, held that nothing in that statute prohibits backpay awards to undocumented workers. Such workers, irrespective of their status, are regarded as “employees” under the National Labor Relations Act (NLRA).NLRB v. Kolkka, 170 F. 3d 937 (1999). The court in Kolkka remphasized that the House Judiciary Committee Report on IRCA stated that the statute “was not intended to limit in any way the scope of the term ‘employee’ under the NLRA” or the rights and protections of workers under the Act. As a result, the court denied the employer’s petition for review and granted the Board’s cross-application for enforcement.


About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at Carl.Baldwin@immigrationnewsmonthly.com.

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from www.amazon.com



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