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Five Years Later: Navigating The Legal Battlefield Of IRCA And Undocumented Workers' Remedies After Hoffmanby William J. Simmons
The
Immigration Reform and Control Act of 1986 ("IRCA")[1]
made it illegal for employers to hire undocumented immigrants knowingly.[2] IRCA also created a mandatory employment
verification system, resulting in the current I-9 form, for employers to screen
potential employees for their eligibility to work.[3] Further, IRCA criminalized an undocumented
immigrant’s submission of fraudulent employment verification documents, such as
resident alien cards or social security cards, to employers.[4] An employer must terminate an immigrant
worker if, after good faith compliance with the employment verification
requirements, the employer later learns that the worker is undocumented.[5] Thus, under IRCA, "it is impossible for an
undocumented alien to obtain employment in the Yet
IRCA has not stopped the employment of undocumented workers.[7] Research suggests that as of 2006 there were
approximately seven million undocumented workers in the In
what has become a seminal case, the United States Supreme Court in Hoffman Plastic Compounds, Inc. v. National
Labor Relations Board,[11]
held in 2002 that the National Labor Relations Board ("NLRB") could not award backpay
to "an undocumented alien who has never been legally authorized to work in the
United States," because "such relief is foreclosed by federal immigration
policy, as expressed by Congress in [IRCA]."[12] In the five years since that holding, courts,
litigants, and administrative agencies have struggled to determine its significance
for employers and other undocumented plaintiffs under the National Labor
Relations Act,[13]
other federal laws such as Title VII[14]
and the Fair Labor Standards Act,[15]
and even state tort and wage-hour laws.
This article will first undertake a detailed textual analysis of the
tangled web that is Hoffman, demonstrating
how both the facts and the Court’s language in that case have caused the
confusion that exists today surrounding legal remedies available to
undocumented workers. Then the article
will survey recent cases involving this issue to provide guidance to
practitioners navigating the legal battlefield of undocumented workers’ rights
and remedies after Hoffman. The unique prospective provided by five years
of jurisprudence since Hoffman shows
that there is some "safe" common ground on four core issues: undocumented
workers’ standing to sue, compensation for work already performed, reinstatement,
and discovery related to immigration status.
Where there is not common ground, very recent cases have provided
support for a theory that the cases can be divided—more or less—into two analytical
camps, each deriving support from Hoffman:
what I will call the "wrongdoer-centric" cases[16]
and the "bright line" cases.[17] Understanding the two fundamental approaches
will hopefully assist practitioners in determining which cases and arguments
provide the best support for their clients, and provide an analytical framework
for judges yet to consider issues of undocumented worker remedies.[18] I. Hoffman:
It Giveth and It Taketh Away Hoffman
involved an undocumented worker employed at a chemical manufacturing plant.[19] The employer followed IRCA’s employment eligibility
verification requirements, but the worker tendered a fraudulent birth
certificate in order to obtain work.[20] Later, a union began an organizing campaign
at the manufacturing plant.[21] The undocumented worker and several other
employees assisted with the organizing campaign and distributed authorization
cards for the union to other employees.[22] The employer fired the undocumented worker
and other employees as a result.[23] The union filed a complaint with the NLRB, which
ultimately determined that the employer had violated the National Labor
Relations Act by terminating the employees.[24] The NLRB ordered that the employer "cease and
desist" from other unfair labor practices, post a notice to employees regarding
the NLRB’s order, and to offer reinstatement and backpay to the terminated
employees.[25] At a subsequent hearing to determine the backpay
award amount, the undocumented worker admitted that he was never lawfully
admitted into the Chief
Justice Rehnquist, writing for a 5-4 majority, states Hoffman’s holding in at least two places in the opinion. The first statement of the holding is in the
first paragraph of the opinion: "The
National Labor Relations Board (Board) awarded backpay to an undocumented alien
who has never been legally authorized to work in the We
therefore conclude that allowing the Board to award backpay to illegal aliens
would unduly trench upon explicit statutory prohibitions critical to federal
immigration policy, as expressed in IRCA. It would encourage the successful
evasion of apprehension by immigration authorities, condone prior violations of
the immigration laws, and encourage future violations. However broad the
Board's discretion to fashion remedies when dealing only with the NLRA, it is
not so unbounded as to authorize this sort of an award.[29] When viewed against each
other, these two statements of Hoffman’s holding
seem quite consistent and easy to understand: federal immigration policy
prevents the NLRB from awarding backpay to an undocumented worker. The problem, however, is that these two
statements of the holding essentially book-end a complex, sometimes seemingly contradictory,
discussion of the reasoning for the holding.
Thus, even five years after Hoffman, courts and litigants continue to
struggle with how to apply Hoffman
and whether to extend the Court’s reasoning to other analogous cases involving
undocumented worker plaintiffs. The first portion of Hoffman
discusses the "decisional background" the Court determines is relevant to the
NLRB’s award of backpay in the case,[30] stating
that the case "exemplifies the principle that the [NLRB]'s discretion to select
and fashion remedies for violations of the NLRA, though generally broad . . . is not unlimited."[31] The Court discusses several cases where the
Court has "set aside awards of reinstatement or backpay to employees found
guilty of serious illegal conduct in connection with their employment."[32] The Court even distinguishes a case the NLRB
cited for the proposition that backpay can be awarded to employees who violate
federal law.[33] Interestingly, the Court distinguishes the
case in three ways: First,
we expressly did not address whether the Board could award backpay to an
employee who engaged in "serious misconduct" unrelated to internal
Board proceedings . . . such as threatening to kill a supervisor . . . or
stealing from an employer. . . Second, the challenged order did not implicate
federal statutes or policies administered by other federal agencies, a
"most delicate area" in which the Board must be "particularly careful
in its choice of remedy." . . . Third, the employee misconduct at issue,
though serious, was not at all analogous to misconduct that renders an
underlying employment relationship illegal under explicit provisions of federal
law.[34] Essentially between the
Court’s discussions of these employee misconduct cases, the Court cites several
cases, "[s]ince Southern S. S. Co."[35]
where apparently no employee misconduct was at issue, but still the Court did not
"defer[ ] to the Board's remedial preferences where such preferences
potentially trench[ed] upon federal statutes and policies unrelated to the
NLRA," including conflicts with bankruptcy law, antitrust law, and the
Interstate Commerce Act.[36] Thus
it is unclear exactly what the Court means when it states that "we believe the
present case is controlled by the Southern
S. S. Co. line of cases, rather than by ABF
Freight."[37]
The Court could mean that the decisional background indicates primarily that
serious employee misconduct may bar certain NLRB remedies, or instead that the
cases should be taken for the general proposition that the NLRB does not have
unfettered discretion on remedies where there is a conflict between the
remedies available under National Labor Relations Act and other federal laws. The answer seems clear a few paragraphs
later: "The Southern S. S. Co. line of cases established that where the Board's
chosen remedy trenches upon a federal statute or policy outside the Board's
competence to administer, the Board's remedy may be required to yield."[38] It would appear, then, that the Court
interpreted the employee misconduct cases as a subset of those cases where the
Court did not defer to the NLRB’s choice of remedies when other laws were
involved. This language is consistent
with the two explicit statements of the holding of Hoffman, quoted earlier, which do not mention the undocumented
worker’s fraud. Unfortunately, however,
the Court continues to pepper language of the employee’s fraud throughout the
opinion,[39]
despite that it would seem the employee’s fraud per se was not truly material to the holding of the case. It is
important to note too that the NLRB had already limited the backpay award to
the period between the termination and the date the employer learned of the
worker’s undocumented status.[40] Thus, the NLRB contended that the award did
not directly conflict with IRCA because IRCA would only require the worker’s
termination once the good faith employer learned of the worker’s status. Still, the Court found that immigration law
policy in general would conflict with the backpay award. Indeed, the Court indicates several ways
immigration law policy, not just specific sections of IRCA, conflicts with the backpay
remedy without regard to whether an undocumented worker actually submitted
fraudulent documents to his employer, or whether the backpay award was limited
to the period before required termination.
The Court states: awarding
backpay in a case like this not only trivializes the immigration laws, it also
condones and encourages future violations. The Board admits that had the INS
detained Castro, or had Castro obeyed the law and departed to Therefore, according to the
Court, a backpay award would be impermissible because it would "encourage the successful
evasion of apprehension by immigration authorities, condone prior
violations of the immigration laws, and encourage future violations."[42] Still, it can seem as though every court to address
remedies available to undocumented workers over the past five years has done so
with a unique view of Hoffman.[43] Perhaps this is because Hoffman constantly confused and intermingled the facts of the
undocumented worker’s fraud with the broader reasoning of immigration law’s (perceived)
conflict with the backpay remedy, and did not clearly state the material facts
to its holding. Hoffman, narrowly construed, also dealt with the power of a
particular federal agency to enforce a particular federal law. The Court made no attempt to clarify whether
its reasoning should be applied to courts enforcing federal laws, whether the
reasoning should be applied to other federal laws, or whether its reasoning
should be applied to potential conflicts with state laws. Thus courts have struggled over the past five
years with whether and how far to extend Hoffman
to analogous cases, as litigants on both sides have jockeyed for position in
this legal battlefield. Fortunately,
however, since Hoffman courts have reached
consistent results on some underlying issues concerning undocumented workers
and their employers. II. Some Clarity in the Aftermath
First,
it is relatively clear that Hoffman
does not bar undocumented workers from all relief, nor does it deprive
undocumented workers the right to sue employers.[44] A National Labor Relations Board general
counsel memorandum stated as much just a few months after Hoffman: "The Courts,
too, have consistently rejected employers’ claims that Hoffman precludes undocumented workers from all recovery or denies
them legal standing for all purposes.
For instance, in Singh v. Jutla
& C.D. & R’s Oil, Inc.,[47]
the undocumented worker plaintiff claimed that the employer had retaliated
against him for filing an FLSA claim by reporting him to the INS.[48] The employer filed a motion to dismiss on the
premise that Hoffman barred the cause
of action.[49] The employer argued that Hoffman "should be read to indicate that undocumented workers are
not entitled to a wider array of remedies under the national labor laws,"
likening "other forms of relief to backpay, thereby extending Hoffman so that
an undocumented worker is precluded from bringing a claim under the FLSA's
anti-retaliation provisions."[50] The court disagreed and held that "though
Hoffman prevents an undocumented worker from seeking backpay, it does not
preclude an undocumented worker from seeking any form of relief, as shown
through the Court's granting of both injunctive and declaratory relief."[51] The court thus sustained the worker’s cause
of action.[52]
Similarly, Escobar v. Spartan Security Service rejected an employer’s claim
that Hoffman should be read to deny
undocumented workers Title VII protections.[53] In another example, Zavala v. Wal-Mart Stores, Inc. rejected the employer’s claim that
undocumented workers were not entitled to relief under the Fair Labor Standards
Act pursuant to Hoffman.[54] The court noted that the plaintiffs sought
compensation for work already performed rather than work not performed, and stated
that it "join[ed] the growing chorus acknowledging the right of undocumented
workers to seek relief for work already performed under the FLSA."[55] The Second Circuit has upheld an undocumented
worker’s personal injury suit against his employer,[56]
and workers have also been held to have standing to sue under the Migrant and Seasonal
Agricultural Worker Protection Act.[57] A The
corollary, however, is that courts have extended Hoffman beyond the NLRB’s enforcement of the National Labor
Relations Act.[59] Hoffman
may thus apply to limit some of the remedies available to undocumented workers
in suits pursuant to the Fair Labor Standards Act,[60]
Title VII,[61]
the Americans with Disabilities Act, Age Discrimination in Employment Act and
state tort and wage-hour laws.[62] Moreover, where an undocumented worker sues
his employer and claims only wrongful termination, the court may deny him all
private remedies pursuant to Hoffman
and IRCA. For instance, the New Jersey
Appellate Division in Crespo v. Evergo
Corporation held that IRCA and Hoffman
barred an undocumented worker from receiving any damages whatsoever (economic
or non-economic) in a New Jersey Law Against Discrimination pregnancy
leave-based wrongful termination claim.[63] The court stressed that the undocumented
worker claimed only that the employer did not allow her to return to work after
her maternity leave.[64] The employer did not discover the
undocumented worker’s status until the complaint in the case was filed,[65]
so the worker’s immigration status was unrelated to the termination. Still, after surveying Hoffman, IRCA, and prior In
contrast to Crespo, one Thus,
given this case history, advocates for undocumented workers should feel
confident that the worker generally will have standing to sue, and employers
should focus their efforts elsewhere in legal arguments to the court.
Second,
in numerous cases involving the Fair Labor Standards Act, state wage-hour laws,
and even Title VII, courts have allowed undocumented workers to recover
compensatory damages for work they have already performed. [73] The issue usually arises because the employer
has hired an undocumented worker but not paid the worker the prevailing minimum
wage, and/or has not paid the worker proper overtime for work performed. It can also arise, however, in a Title VII
claim that an employer discriminated against an undocumented worker of a
protected class by paying him less than other similarly situated employees.[74] These cases derive support from language in Hoffman that the NLRB could not make an
award for "years of work not performed,"[75]
while the court was silent on remedies for work already performed.[76] Moreover,
courts conclude that Hoffman and IRCA
do not bar recovery for work already performed because (1) the remedy does not
presume or require future violations of IRCA[77]
and (2) barring recovery would provide employers with a perverse economic
incentive to violate IRCA.[78] That is, if employers know that they do not
have to pay undocumented workers for work not performed, and also need not fear
suits for proper wages for work already performed, employers may determine that
the economic benefits of hiring undocumented workers far outweighs any risk.[79] Even
if a worker has secured employment by submitting fraudulent documents to the
employer, a court may still allow compensatory damages for work already
performed. In Pineda v. Keltech
Construction, Inc.,[80]
undocumented construction workers sued their employer, a general contractor,
for unpaid wages and benefits pursuant to the Undocumented
workers may also receive statutory penalty damages in addition to compensatory
damages as a result of the employer’s failure to pay contracted-for wages for
work performed. In Coma Corp. v. Kansas Department of Labor,[86]
an undocumented worker who was terminated after having been employed as a cook sued
his former employer for unpaid wages.[87] The worker claimed that the employer had
agreed to pay him six dollars per hour, that he had worked 50-60 hours per week
during his employment, and that the employer had only paid him about $60 per
week.[88] The employer claimed that the alleged
contract was illegal and unenforceable pursuant to IRCA and Hoffman.[89] Kansas statutory wage-hour law allowed an
award of penalty damages in addition to compensatory damages, when the employer
"willfully" failed to pay appropriate wages to an employee, "in the amount of 1%
of the unpaid wages for every day they are not paid, up to a total of 100%."[90] The Kansas Department of Labor hearing officer
awarded the worker unpaid wages at the rate of the oral contract as well as
maximum penalty damages. The lower court,
reviewing the hearing officer’s decision, held that the worker could only
recover the applicable minimum wage for hours that he had worked, rather than
the higher six dollars per hour rate, because the employment contract was
illegal.[91] The lower court also reversed the statutory
penalty award, holding that federal immigration policy would bar the award.[92] The lower court had reasoned that "the award
of the statute of the statutory penalty to an illegal alien tips the scale too
much towards providing an incentive to illegal aliens to work in the Therefore,
the categorical rejection of the theory over the past five years that Hoffman bars proper compensation for
work an undocumented worker has already performed makes it essentially a waste
of an employer’s time and money to argue the theory hereafter, absent perhaps
waiver arguments when a worker has committed fraud, or arguments about
statutory penalty damages, as these cases are only just beginning to be
litigated.
Third,
it is also clear that courts will not order undocumented workers reinstated due
to IRCA and Hoffman. As the Second Circuit in Madeira v. Affordable Housing Foundation, Inc. stated: On the
far end of remedies in plain conflict with federal immigration policy are
orders directing employers who have violated some other law to reinstate
undocumented workers. In such
circumstances, the conflict with federal immigration law is both direct and
positive because compliance with the remedial order requires the employer to
violate IRCA.[96] In fact, Hoffman noted that IRCA effectively
requires an employer to terminate an employee upon learning that he or she is
an undocumented worker.[97] Thus reinstatement of that same worker would
be out of the question. The
sole possible exception to this rule is that if a worker was undocumented at
the time of employment, but has since achieved legal status in the This possible exception to the general no-reinstatement
rule has not been sufficiently litigated to provide sure guidance for
practitioners. On one hand, a court
would not actually force an employer to violate IRCA if it ordered the employer
to hire a worker who presently has legal status to work. In addition, the reinstatement of the worker
would not encourage future violations of immigration laws because the worker
would now be following those laws. On the
other hand, the reinstatement remedy suggests that the employment relationship
should have continued in the first place but for the employer’s misconduct. This is not the case, however, where the
worker submitted fraudulent documents to his or her IRCA-complying employer. Then the employment relationship should not
have begun, let alone continued. A reinstatement
award on those facts seems to contradict the spirit of IRCA by suggesting that
the undocumented worker’s recent compliance with immigration law means that he
was entitled to keep working at the time of termination, even though in fact he
was not. When faced with a case involving
a formerly undocumented worker, then, advocates for both the worker and
employer must contemplate reinstatement as a possible remedy. Where the worker remains undocumented, however,
it is clear that courts will not order reinstatement.
Fourth
and finally, courts have been reluctant, even after Hoffman, to grant employers’ broad requests for discovery into the
immigration status of plaintiff employees.[103] Courts are concerned about the chilling
effect of the discovery on suits by undocumented workers and the leverage that
employers may get from the discovery.[104] This is the case even when employers claim
that evidence of a worker’s submission of fraudulent documents to the employer
would be relevant for impeachment purposes at trial. A case recently decided in the Southern
District of New York provides an example.
In Avila-Blum v. Casa de Cambio
Delgado, Inc.,[105] a
worker filed a discrimination suit against his employer. The employer sought discovery into the
workers’ immigration status and falsification of employment verification
documents.[106] A magistrate judge granted a protective order
barring discovery into the immigration status of the plaintiff, at least until
the damages phase of the case, and the district court affirmed.[107] The court reasoned that: While
the issue of immigration status may be relevant to damages insofar as it may
limit the availability of certain forms of damages, Defendants have pointed to
nothing other than the issue of credibility during the liability phase to which
this inquiry is relevant. As set forth above, that a party's credibility is at
issue does not by itself warrant unlimited inquiry into the subject of
immigration status when such examination would impose an undue burden on
private enforcement of employment discrimination laws.[108] Nevertheless,
advocates for employers should discern whether sloppy complaints leave openings
making the immigration status of a plaintiff relevant, as the employee’s status
may drastically affect the remedies available.[109] However, as De La Rosa v. Northern Harvest Furniture[110] demonstrates,
employers must carefully frame discovery requests for relevant time periods or
else risk denial of the requests. In De La Rosa, the employer requested
discovery of the worker’s current immigration status and his status at the time
of employment.[111] The employer claimed that the information was
relevant to the worker’s backpay claim.[112] The court denied the request, however,
because "backpay would cover the period after an employee is terminated and
before the employer offers reinstatement," and therefore the worker’s
immigration status during other times was irrelevant.[113] Conversely,
advocates for undocumented workers must be mindful of the sorts of claims that will
make the immigration status of the worker relevant and discoverable. For instance, the advocate for the
undocumented worker must be careful not to use boilerplate remedial language at
the end of the complaint. Claims for
reinstatement, backpay or front pay will likely expose the worker to discovery
into the worker’s immigration status, as these remedies may not be available to
undocumented workers. Moreover, claims
for wrongful termination alone will likely make the plaintiff’s immigration
status at the time of termination relevant for discovery purposes. Lawyers, however, can protect against inquires
into immigration status by avoiding such claims.[114] III. Compensation for
Work Not Performed: The Wrongdoer-Centric vs. Bright-Line Cases Despite relative clarity on the issues mentioned above, it
remains extremely unclear whether a particular court will award damages to
undocumented workers for work not performed after Hoffman. These wages would
typically encompass either backpay or front pay. Backpay represents wages the employee should
have earned from the time the employee was terminated until the case or a
proper reinstatement. So-called "front
pay" is synonymous with expected future earnings or future earning capacity. It seems that courts are divided into two
theoretical camps in considering whether undocumented workers are entitled to pay
for work not performed, taking either a "wrongdoer" approach or a "bright-line"
approach. In hindsight, it should come
as no surprise that courts have divided along these lines. As discussed earlier, my reading of Hoffman insists that the decision constantly
intermingled discussion of the fraudulent conduct of the worker and cases
involving worker misconduct with broad reasoning about immigration law’s
conflict with awarding backpay to undocumented workers generally.[115] Thus, it is only natural that some courts
would read Hoffman narrowly as
focused on worker misconduct, while others would read Hoffman more broadly. The
structure of Hoffman itself, then, has
likely led to the duality of wrongdoer centric courts and bright-line courts on
this issue. More recent decisions on
this issue since 2005 have further enforced the rigidity of these two
analytical approaches. Wrongdoer-centric
courts focus on the factual issue of whether the employer, the employee, or
both violated IRCA during the employment relationship, when determining
available remedies.[116] These courts derive support from Hoffman’s fact pattern, because it
involved an undocumented worker who violated IRCA by submitting fraudulent
documents to his good-faith employer.
The courts also derive support from Hoffman’s
repeated references to the wrongful conduct of the employee in the case. Further, these courts often cite to Justice
Breyer’s dissent in Hoffman, which
stated that: "[w]ere the Board forbidden to assess backpay to a knowing
employer--a circumstance not before us today . . . this perverse economic
incentive, which runs directly contrary to the immigration statute's basic
objective, would be obvious and serious."[117] That is, the argument goes, if the employer
had been the wrongdoer rather than the employee, the decision in Hoffman would have been different. Bright
line courts, in contrast, view Hoffman
as creating categories of remedies available and unavailable to undocumented
workers, with little, if any, discussion of which party actually violated IRCA
in the case. These courts derive support
from Hoffman’s refusal to bar all
remedies to the undocumented worker and the Court’s broad reasons for
immigration law’s conflict with the backpay remedy. Rosa v. Partners in Progress,[118] Madeira v. Affordable Housing Foundation,[119] and
Veliz v. Rental Service Corp.[120] exemplify
the "wrongdoer" approach. Rosa involved a subcontractor’s
undocumented worker who was injured on a construction site and filed a personal
injury suit against his employer and the general contractors, claiming in part
lost earning capacity [front pay] based on Similarly, Madeira involved an undocumented worker
plaintiff who brought a personal injury suit resulting from a work injury and
claimed front pay based on (1) the
wrong being compensated . . . is not authorized by IRCA under any circumstance;
(2) it was the employer rather than the worker who knowingly violated IRCA in
arranging for the employment; and (3)
the jury was instructed to consider the worker's removability in deciding what,
if any, lost earnings to compensate.[129] Of course, the first prong
of the court’s holding is largely insignificant, as the only possible "wrong"
to an employee that IRCA authorizes is termination. It is relatively clear that because IRCA
requires a good-faith employer to terminate an undocumented worker upon
learning of the worker’s status, workers who defrauded their employers and now
only claim wrongful termination would not likely have remedies at law.[130] The third prong is merely a procedural jury
instruction requirement. This leaves the
second prong as the determinative factor for whether a particular undocumented
worker can recover backpay or front pay based on |
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