Five Years Later: Navigating The Legal Battlefield Of IRCA And Undocumented Workers' Remedies After Hoffman
Immigration Reform and Control Act of 1986 ("IRCA")
made it illegal for employers to hire undocumented immigrants knowingly. 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. Further, IRCA criminalized an undocumented
immigrant’s submission of fraudulent employment verification documents, such as
resident alien cards or social security cards, to employers. 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. Thus, under IRCA, "it is impossible for an
undocumented alien to obtain employment in the
IRCA has not stopped the employment of undocumented workers. 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, 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]." 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, other federal laws such as Title VII and the Fair Labor Standards Act, 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 and the "bright line" cases. 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.
I. Hoffman: It Giveth and It Taketh Away
involved an undocumented worker employed at a chemical manufacturing plant. The employer followed IRCA’s employment eligibility
verification requirements, but the worker tendered a fraudulent birth
certificate in order to obtain work. Later, a union began an organizing campaign
at the manufacturing plant. The undocumented worker and several other
employees assisted with the organizing campaign and distributed authorization
cards for the union to other employees. The employer fired the undocumented worker
and other employees as a result. 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. 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. At a subsequent hearing to determine the backpay
award amount, the undocumented worker admitted that he was never lawfully
admitted into the
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.
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, 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." 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." The Court even distinguishes a case the NLRB cited for the proposition that backpay can be awarded to employees who violate federal law. 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.
Essentially between the Court’s discussions of these employee misconduct cases, the Court cites several cases, "[s]ince Southern S. S. Co." 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.
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." 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." 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, 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. 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:
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."
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. 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
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. A National Labor Relations Board general
counsel memorandum stated as much just a few months after Hoffman: "The
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.,
the undocumented worker plaintiff claimed that the employer had retaliated
against him for filing an FLSA claim by reporting him to the INS. The employer filed a motion to dismiss on the
premise that Hoffman barred the cause
of action. 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." 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." The court thus sustained the worker’s cause
Similarly, Escobar v. Spartan Security Service rejected an employer’s claim
that Hoffman should be read to deny
undocumented workers Title VII protections. 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. 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." The Second Circuit has upheld an undocumented
worker’s personal injury suit against his employer,
and workers have also been held to have standing to sue under the Migrant and Seasonal
Agricultural Worker Protection Act. A
corollary, however, is that courts have extended Hoffman beyond the NLRB’s enforcement of the National Labor
Relations Act. Hoffman
may thus apply to limit some of the remedies available to undocumented workers
in suits pursuant to the Fair Labor Standards Act,
the Americans with Disabilities Act, Age Discrimination in Employment Act and
state tort and wage-hour laws. 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. The court stressed that the undocumented
worker claimed only that the employer did not allow her to return to work after
her maternity leave. The employer did not discover the
undocumented worker’s status until the complaint in the case was filed,
so the worker’s immigration status was unrelated to the termination. Still, after surveying Hoffman, IRCA, and prior
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.  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. These cases derive support from language in Hoffman that the NLRB could not make an award for "years of work not performed," while the court was silent on remedies for work already performed.
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 and (2) barring recovery would provide employers with a perverse economic incentive to violate IRCA. 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.
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
undocumented construction workers sued their employer, a general contractor,
for unpaid wages and benefits pursuant to the
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,
an undocumented worker who was terminated after having been employed as a cook sued
his former employer for unpaid wages. 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. The employer claimed that the alleged
contract was illegal and unenforceable pursuant to IRCA and Hoffman. 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%." 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. The lower court also reversed the statutory
penalty award, holding that federal immigration policy would bar the award. 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.
In fact, Hoffman noted that IRCA effectively requires an employer to terminate an employee upon learning that he or she is an undocumented worker. Thus reinstatement of that same worker would be out of the question.
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. 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. 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., a worker filed a discrimination suit against his employer. The employer sought discovery into the workers’ immigration status and falsification of employment verification documents. 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. 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.
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. However, as De La Rosa v. Northern Harvest Furniture 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. The employer claimed that the information was relevant to the worker’s backpay claim. 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.
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.
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. 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. 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." 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, Madeira v. Affordable Housing Foundation, and
Veliz v. Rental Service Corp. 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.
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. 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
insofar as an undocumented worker's employment necessarily originates in a past IRCA violation that would presumably have continued but for the injury, the Supreme Court has thus far recognized a backpay or lost earnings award to conflict with federal immigration law only when the IRCA violation prompting employment was committed by the employee, not, as in this case, by the employer. . . when, as in this case, both the illegal employment relationship and the personal injury are attributable to the wrongful conduct of persons other than the undocumented worker, a denial of lost earnings compensation . . . is more apt to subvert both federal and state law than a grant of such compensation is apt to place the two in direct and positive conflict with one another.
Veliz involved an undocumented worker who died as a result of a work-related
injury. There, however, the undocumented worker had "unlawfully
subverted the IRCA's enforcement mechanism" when he submitted a fraudulent
Resident Alien Card and Social Security Card to obtain employment. The court concluded that based on language in
Hoffman, "permitting an award
predicated on wages that could not lawfully have been earned, and on a job
obtained by utilizing fraudulent documents" would violate the "letter and
spirit" of IRCA. Thus, the worker’s estate could not recover
front pay based on
Alternatively, Renteria v. Italia Foods, Inc. provides a paradigm example of the categorical, "bright-line" approach to the issue of undocumented workers’ rights to backpay and frontpay. Renteria included no discussion of who may have violated IRCA in the employment relationship and instead stated:
Defendants argue that an award of backpay, front pay, or compensatory damages for a violation of the FLSA likewise would trench on the policies expressed in the IRCA. With regard to backpay and front pay, the Court agrees. The policies that motivated the enactment of the IRCA are certainly subject to debate, but the IRCA is the law of the land, and the Supreme Court has made it clear that awarding backpay to undocumented aliens contravenes the policies embodied in that law. An award of front pay would be inappropriate for the same reason: front pay essentially assumes that the worker will continue to work for the employer in the future, which is against the law for an undocumented alien. We reach a different conclusion, however, regarding compensatory damages.
Based on this broad, wrongdoer-free reading of Hoffman, Renteria thus held that compensatory damages remained available to the plaintiffs because the damages did not "assume the undocumented worker's continued (and illegal) employment by the employer," and because Hoffman did not specifically bar the NRLB from awarding any remedies.
A New Jersey District Court appeared to take a similar categorical approach in Zavala v. Wal-Mart, Inc., holding that "[p]laintiffs should not be precluded, as a matter of law, from obtaining relief under the FLSA for work already performed, merely by virtue of their undocumented status." The court did not address at all which party may have precipitated an IRCA violation in reaching this conclusion. Instead, it noted that the plaintiffs in Hoffman "sought recovery for the hours that they would have, but had not, worked, had they not been terminated for engaging in protected, union-related activities. Here, Plaintiffs hope to recover under the FLSA for work that they already have performed." Zavala found this distinction "significant, because the Court's concern in Hoffman -- that recognizing a cause of action under the NLRA for undocumented persons for work not performed would undermine the purposes of [IRCA] which ‘forcefully made combating the employment of illegal aliens central to the policy of immigration law,’ . . . is not implicated here in the same respect." Zavala thus endorsed a bright-line approach to undocumented workers’ remedies: backpay is barred by Hoffman, but pay for work already performed is not. Other district courts have reached similar categorical conclusions.
although not conclusive on the point, the Kansas Supreme Court in Coma Corp., discussed earlier, seemed to
implicitly endorse a bright-line reading of Hoffman. It concluded that "the
The cases decided in the five years since Hoffman have provided practitioners with relative clarity on certain issues in undocumented workers’ suits against their employers. First, undocumented workers have standing to sue their employers. Second, undocumented workers and their employers can expect that courts will allow undocumented workers to recover proper compensation for work already performed. Third, courts will not order reinstatement of an undocumented worker. Fourth, courts tend to be circumspect about allowing discovery into workers’ immigration status. However, courts are willing to grant discovery, at the very least at the damages phase of a bifurcated trial, where plaintiffs plead remedies to which undocumented workers are not entitled.
The real legal battleground five years after Hoffman concerns whether a particular court that has not yet ruled on the issue will allow undocumented workers to recover backpay or frontpay for work they have not performed. Close analysis of cases that have addressed the issue, however, demonstrate two major approaches, which I have labeled the "wrongdoer" and "bright-line" approaches. When faced with a court where the issue is one of first impression, then, practitioners on either side can be confident that these cases provide them with tools to argue their case regardless of their case’s specific facts.
For instance, in a case where the plaintiff has submitted fraudulent documents to his good-faith employer, the employer’s counsel can argue that wrong-doer cases like Veliz and Rosa, and by analogy, Crespo, should preclude the worker from most, if not all, remedies. In turn, the worker’s counsel can argue that the court accept bright-line cases such as Renteria, Zavala, and Singh to allow at least some recovery regardless of the worker’s wrongdoing.
presented with a case of a knowing employer of undocumented workers, the
worker’s counsel instead can argue the wrongdoer line of cases: that the court
should adopt the logic of Rosa and
approximately seven million undocumented workers in the
 8 U.S.C. 1324a et. seq. (2000)
 8 U.S.C. 1324a(a)(1)(A)
 8 U.S.C. 1324a(a)(1)(B) (mandating employers verify eligibility); 8 U.S.C. 1324a(b) (creating system to verify eligibility)
 8 U.S.C. 1324c.
 8 U.S.C. 1324a(a)(2). Note that there is an effort in Congress to make the employment verification process completely electronic, which would automatically notify the employer of potentially fraudulent documents, and therefore would largely eliminate the problem of good faith employment of undocumented immigrants.
 Hoffman Plastic Compounds, Inc. v. National Labor
Relations Board, 535
 See Angie Halim and Shereen C. Chen, Illegal Workers and The Employer’s Liability, Ballard Spahr Andrews and Ingersoll, http://www.ballardspahr.com/press/article.asp?ID=1453 (last visited Apr. 7, 2007) (describing several recent Department of Justice raids on employers discovering undocumented workers).
 Francine J. Lipman, The Taxation of Undocumented Immigrants: Separate, Unequal, and Without Representation, 9 Harv. Latino L. Rev. 1, 12-13 (2006).
 See, e.g., Illegals Exploited in Katrina Cleanup, Study Says, http://www.msnbc.msn.com/id/13178949/ (last visited Apr. 7, 2007) (quoting one 29 year old undocumented worker employed in the Katrina cleanup effort as stating, "It’s too dangerous for my body . . . But I don’t say anything. If I do, the boss says, ‘Hey, if you don’t work hard, I’ll take you to immigration,"’).
U.S.C. §§ 151-169 (2000). "Congress
enacted the National Labor Relations Act (‘NLRA’) in 1935 to protect the rights
of employees and employers, to encourage collective bargaining, and to curtail
certain private sector labor and management practices, which can harm the
general welfare of workers, businesses and the
 42 U.S.C. § 2000e et seq. In relevant part, Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." § 2000e-2(a)(1).
 29 U.S.C. § 201 et. seq. The Fair Labor Standards Act, among other things, established a mandatory minimum wage and mandatory overtime pay in certain instances. See 29 U.S.C. §§ 206, 207 (minimum wage and maximum hour, overtime provisions)
in the "wrongdoer-centric" category include: Madeira v. Affordable Housing, 469
F.3d 219, 249 (2d Cir. 2006), Veliz v. Rental Services Corp., 313 F. Supp. 2d
1317 (M.D. Fla. 2003), and
in the "bright line" category include: Renteria v. Italia Foods, No. 02 C 495,
2003 WL 21995190 (N.D. Ill.
author recognizes that other articles have been written regarding Hoffman and its aftermath. However, some of these articles were written
soon after Hoffman was decided,
focused extensively on pre-Hoffman
case law, and could only speculate about Hoffman’s
impact. See, e.g., Robert I. Correales. Did
Hoffman Plastic Compounds, Inc., Produce Disposable Workers?, 14
 Hoffman, 535
 Hoffman, 535
 Hoffman, 535
 See id. at 146 (stating, after discussion of many previous cases, "It is against this decisional background that we turn to the question presented here,").
 See id. at 145-46 (distinguishing ABF Freight System, Inc. v. NLRB, 510 U.S. 317 (1994) where the Court held that an employee’s false testimony at a proceeding did not automatically preclude an award of backpay).
 Hoffman, 535
S. S. Co. v. NLRB, 316
 Hoffman, 535
 See, e.g. ,id.. at 148-49 ("The Board asks that we . . . allow it to award backpay to an illegal alien . . . for a job obtained in the first instance by a criminal fraud"); id. at 149 ("What matters here, and what sinks both of the Board's claims, is that Congress has expressly made it criminally punishable for an alien to obtain employment with false documents,"); id. at 149 ("Far from ‘accommodating’ IRCA, the Board's position, recognizing employer misconduct but discounting the misconduct of illegal alien employees, subverts it,").
 Hoffman, 535
 I recognize that this may be perceived as a generous view of subsequent court decisions. That is, it is equally plausible that the Court’s wavering language throughout the opinion does not so much confuse courts as it does give courts a way to justify just about any holding on this issue. For instance, the Second Circuit allowed undocumented workers to collect backpay before Hoffman, see NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 57 (2d Cir.1997), and continued to allow at least some undocumented workers to recover U.S. wages for work not performed by reading Hoffman narrowly, see Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219, 249 (2d Cir. 2006).
it is beyond the scope of this article, it should also be noted that
undocumented workers are generally eligible for workers compensation
benefits. See Crespo v. Evergro, 366 N.J. Super. 391, 398-99 (App. Div. 2004)
 National Labor Relations Board, General
Counsel Memorandum 02-06, Procedures and Remedies for Discriminatees Who May Be
Undocumented Aliens after Hoffman Plastic Compounds, Inc. (
 Equal Employment
 214 F.
Supp. 2d 1056 (N.D.
 Id. at 1062; see also Flores v.Limehouse, No. 2:04-1295-CWH, 2006 WL 1328762 at *2-3 (D.S.C. May 11, 2006) (holding that IRCA and Hoffman did not bar undocumented worker’s suit under "federal or state labor laws," or bringing . . . federal and state law claims for withheld wages or [a] RICO claim,"); Rosa v. Partners in Progress, Inc., 152 N.H. 6, 8-9 (2005) (undocumented worker may bring claim for lost earning capacity against employer in personal injury case).
 281 F. Supp. 2d 895, 896-97 (S.D. Tex 2003) (stating that Hoffman "did not specifically foreclose all remedies for undocumented workers under either the National Labor Relations Act or other comparable federal labor statutes, and did not, as is relevant to this case, foreclose remedies for workers who have subsequently attained legal work status in the United States,").
 393 F. Supp. 2d 295, 321-22 (D.N.J. 2005)
 See Madeira v. Affordable Housing
Foundation, Inc., 469 F.3d 219, 249 (2d Cir. 2006) (holding undocumented worker
could even recover lost earnings based on
v. Van Elk, Ltd. No. B182068, 2007 WL 755405 at *9 (Cal.App. 2 Dist.
 In fact, all cases discussed in this article deal with other laws.
 See, e.g., Renteria v. Italia Foods, No.
02 C 495, 2003 WL 21995190 (N.D. Ill.
 See, e.g., Escobar v. Spartan Security Service, 281 F. Supp. 2d 895 (S.D. Tex. 2003); Chellen v. John Pickle, 446 F. Supp. 2d 1247 (N.D. Ok. 2006); but see Rivera v. Nibco, Inc., 364 F.3d 1057, 1067 (9th Cir. 2004) (distinguishing Title VII claims from NLRA claims and stating that it is "unlikely" that Hoffman "applies in Title VII cases,").
 See, e.g., Renteria v. Italia Foods, No.
02 C 495, 2003 WL 21995190 (N.D. Ill.
 366 N.J. Super. 391, 401-02 (App. Div. 2004).
 See id. at 400-01.
v. Fendi North America, Inc., No. 04-57119, 2007 WL 656355 at *3 (9th Cir.
 See Chellen v. John Pickle Co., Inc., 446 F. Supp. 2d 1247, 1277-78 (N.D. Ok. 2006) (holding that Hoffman did not bar damages for work already performed under Fair Labor Standards Act and Title VII, and collecting cases for this proposition from Florida, California, Michigan, New York, and New Jersey ); Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295 (D.N.J. 2005).
 See Chellen, 446 F. Supp. 2d at 1294 (chart demonstrating award to plaintiffs based on Title VII wage claim).
 Hoffman, 535
 See, e.g., Chellen, 446 F. Supp. 2d at 1277-1278.
 See, e.g., Renteria v. Italia Foods, Inc., No. 02 C 495, 2003 WL 21995190 at *6 (N.D. Ill. Aug. 21, 2003) ("The remedy of compensatory damages, unlike those of backpay and front pay, does not assume the undocumented worker's continued (and illegal) employment by the employer."); Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219, 243 (2d Cir. 2006) (stating that a court order to pay minimum wages for work performed to undocumented workers does not "condone" or "continue" the IRCA violation, but rather "ensures that the employer does not take advantage of the violation by availing himself of the benefit of undocumented workers' past labor without paying for it in accordance with minimum FLSA standards,").
 See, e.g., Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F. Supp. 2d 1056, 1062 (N.D. Cal. 2002) (reasoning that prohibiting undocumented worker from recovering compensatory damages for work already performed would "provide a perverse economic incentive to employers to seek out and knowingly hire illegal workers . . . in direct contravention of immigration laws,"); Reyes v. Van Elk, Ltd., No. B182068, 2007 WL 755405 at *8 (Cal.App. 2 Dist. Mar. 14, 2007) (stating that "Allowing employers to hire undocumented workers and pay them less than the wage mandated by statute is a strong incentive for the employers to do so, which in turn encourages illegal immigration," and holding that "Hoffman and their undocumented status did not prohibit plaintiffs from having standing to raise their prevailing wage claim,").
 2007 WL
120217 (N.Y. Sup.
Corp. v. Kansas Department of Labor, No. 95,537, 2007 WL 858869 (
 Coma Corp., 2007 WL 858869 at *2.
 469 F.3d 219, 242-43 (2d Cir. 2006).
 Hoffman, 535
 National Labor Relations Board, General
Counsel Memorandum 02-06, Procedures and Remedies for Discriminatees Who May Be
Undocumented Aliens after Hoffman Plastic Compounds, Inc. (
v. Spartan Security Service, 281 F. Supp. 2d 895, 897 (S.D.
 See Galaviz-Zamora v. Brady Farms, Inc., 230 F.R.D. 499, 502 (W.D. Mich. 2005) (denying discovery of plaintiff’s immigration status); Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 192 (S.D.N.Y. 2002) (same); De La Rosa v. Northern Harvest Furniture, 210 F.R.D. 237 (C.D. Ill. 2002) (same); Cabrera v. Ekema, 695 N.W.2d 78, 82 (Mich. App. 2005) (same).
 Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064 (9th Cir. 2004) ("In this case, the protective order was justified because the substantial and particularized harm of the discovery--the chilling effect that the disclosure of plaintiffs' immigration status could have upon their ability to effectuate their rights--outweighed NIBCO's interests in obtaining the information at this early stage in the litigation."); Avila-Blum v. Casa de Cambio Delgado, Inc. 236 F.R.D. 190, 192 (S.D.N.Y. 2006) ("While there can be little doubt about the highly prejudicial effect of such evidence at trial or its substantial social burden in other respects on the individual involved, the relevance and probative value of the discovery in addressing underlying claims that are the subject of this litigation are questionable at best, at least at the liability stage. For these reasons the Court concurs with the analysis of other courts that have examined these issues and concluded that such discovery should be barred."); Galaviz-Zamora, 230 F.R.D. at 502 (discussing the "detrimental impact resulting from irrelevant inquiries into a worker’s immigration status," and holding that the "damage and prejudice" to the plaintiffs would outweigh any possible relevance for credibility purposes such inquires would have).
 236 F.R.D. 190 (S.D.N.Y. 2006)
 See Rosa v. Partners in Progress, 152
N.H. 6, 15 (2005) (holding that workers claiming lost earning capacity based on
 210 F.R.D. 237 (C.D. Ill. 2002)
 See Galaviz-Zamora, 230 F.R.D. at 501-02 (denying employers request for documents relating to immigration status of workers where workers made claims only for compensatory damages for work already performed); Liu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 192 (S.D.N.Y. 2002) (same); Cabrera, 695 N.W.2d at 82 (same).
 See discussion, supra, § I.
 See discussion, infra, this part.
 Hoffman, 535
 152 N.H. 6 (2005)
 469 F.3d 219 (2d Cir. 2006)
 313 F. Supp. 2d 1317 (M.D. Fla. 2003)
 152 N.H. at 7-8.
 469 F.3d at 222-23.
 See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004) ("The ‘after-acquired evidence’ doctrine precludes or limits an employee from receiving remedies for wrongful discharge if the employer later ‘discovers’ evidence of wrongdoing that would have led to the employee's termination had the employer known of the misconduct."); Crespo, 366 N.J. Super. at 401-02 (undocumented worker precluded from recovery in wrongful termination case).
 313 F. Supp. 2d at 1319-21.
No. 02 C 495, 2003 WL 21995190 (N.D.
 Renteria, 2003 WL 21995190 at *6 (emphasis added).
 393 F. Supp. 2d 295, 322 (D.N.J. 2005).
 Though the plaintiffs alleged that Wal-Mart was engaged in a conspiracy with its contractors to hire undocumented workers, the court does not note that either this or possible submissions of fraudulent documents by the workers would be relevant to its holding.
 Zavala, 393 F. Supp. 2d at 322.
 See Singh v. Jutla & C.D. & R’s Oil, Inc. 214 F. Supp. 2d 1056, 1061 (N.D. Cal. 2002) (holding that Hoffman categorically "eliminated backpay as a remedy available to undocumented workers, thus the decision precludes illegal aliens from a very specific remedy," without any qualifying language regarding wrongdoing by either the employer or worker); see also Escobar v. Spartan Security Service, 281 F. Supp. 2d 895, 897 (S.D. Tex. 2003) (holding that backpay remedy "foreclosed by the fact that [plaintiff] was an undocumented worker at the time he was employed by Spartan," without any discussion in opinion of which party violated IRCA); Cf. Hernandez-Cortez v. Hernandez, No. Civ.A. 01-1241-JTM, 2003 WL 22519678 at *7 (D. Kan. Nov. 4, 2003) (holding, in non-employment personal injury case that plaintiff’s "status as an illegal alien precludes his recovery for lost income based on projected earnings in the United States").
 Coma Corp., 2007 WL 858869 at *5.
 See generally
William J. Simmons is a J.D. Candidate May 2007, Rutgers University School of Law - Newark. He will join the Ballard Spahr Andrews & Ingersoll LLP collaborating as a Labor, Employment, and Immigration associate, beginning September 2007.
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