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Government Officials Studying Impact of Undocumented Worker Case 
(Supreme Court ruled against back wages for fired employee) (1020)
By Stuart Gorin
Washington File Staff Writer

Washington -- A recent U.S. Supreme Court ruling involving an
undocumented worker has concerned government officials studying the
conflicting issues of the decision's impact on worker and immigrant
rights vs. fraudulent employment efforts.

The High Court issued a 5-4 split decision on March 27 that
undocumented immigrants who are wrongly terminated may not collect
back wages from former employers. It overturned an earlier ruling by a
federal appeals court and rejected a policy of the National Labor
Relations Board (NLRB) that the Bush administration had defended.

In 1989, a Mexican national named Jose Castro took a minimum-wage job
with Hoffman Plastic Compounds in Paramount, California, lying about
his immigration status and using a friend's Texas birth certificate to
gain employment.

After Castro tried to establish a union at the plastics company, he
was fired along with three other workers. The case took several years
to wind its way through the system and then in the mid-1990's the NLRB
declared that the men were entitled to back wages -- in Castro's case
nearly $67,000. In disputing the award, the company argued that the
workers were laid off because business had slumped, not because of
their union activities.

In Castro's case, the company challenged the NLRB in court, saying
that because he got his job through fraud, he was not entitled to the
pay. The company also said it was not until after Castro's
termination, more than three years later, that it learned he was

The ruling said Castro was not entitled to back pay for wages that
could not have been lawfully earned and for "a job obtained in the
first instance by a criminal fraud."

Writing for the majority, Chief Justice William Rehnquist said
awarding back pay to illegal aliens "not only trivializes the
immigration laws, it also condones and encourages future violations."
He noted that the Immigration Reform and Control Act of 1986
prohibited the employment of illegal immigrants, and thus the labor
board had no authority to order back pay.

But Rehnquist added that the company was not completely blameless and
said it could still face contempt proceedings for violating federal
labor practices by firing an employee for handing out union cards.

For more than 70 years, the National Labor Relations Act has
prohibited employers from punishing workers for trying to organize a
union. Violators can be forced to rehire the workers or pay them for
their lost work.

In a dissenting opinion, Justice Stephen Breyer wrote that the ruling
will increase illegal immigration and encourage businesses to pay
subpar wages to workers who cannot fight back.

The U.S. Department of Labor, the Equal Employment Opportunity
Commission (EEOC) and other government offices believe the Supreme
Court ruling will affect a variety of programs and policies, not only
concerning pay and job reinstatement but also remedies for victims of
sexual, age, racial or other forms of discrimination.

Traditionally the EEOC has included undocumented workers among those
protected by discrimination laws and has issued updated reminders to
employers. The Department of Labor enforces minimum wage and overtime
standards and other wage requirements under both the Fair Labor
Standards Act and the Migrant and Seasonal Agricultural Workers
Protection Act.

The Houston Chronicle newspaper called the court decision a "defeat"
for the Bush administration, which had argued that monetary penalties
are needed "to dissuade employers from running roughshod" over
undocumented workers in the United States. The Immigration and
Naturalization Service estimates there are 11 million of them living
in the United States, about half that number in California.

A communiqué from the Mexican Embassy in Washington expressed concern
over the ruling and called for bilateral solutions to the Mexico-U.S.
immigration issue. The embassy said that while it respects every
country's right to decide domestic matters, it fears the ruling might
"foment a situation of abuse, exploitation and marginalization" for a
number of undocumented Mexican workers.

President Bush and Mexican President Vicente Fox, meanwhile, remain
committed to working together on the issue of migrant labor.

But calling the court ruling a "devastating attack on undocumented
workers in America and all Latinos across the nation," Arturo
Rodriguez, president of the United Farm Workers union, said it
nullified California's farm labor law and created a "permanent
underclass of semislave laborers" who will be more vulnerable to

Representatives of labor and Hispanic organizations in California,
including Jaime Torres and Reina Schmitz, both in Orange County, said
the ruling would result in increased labor abuses.

Disputing those claims, Roland Hoffman, whose parents started the
plastics company 32 years ago, called the decision "a victory for all
people who work in this country" and said it would help provide jobs
for people who are authorized to work in the United States.

An attorney for the Hoffman company, Ryan McCortney, added that with
broader implications, the case could mean that companies in other
situations now would not have to pay back wages to workers they did
not know were illegal aliens.

Also praising the decision, Michael Hethmon of the Federation for
American Immigration Reform predicted it would boost immigration law
and bolster other cases involving workplace discrimination

On the other side, Mark Krikorian of the Center for Immigration
Studies said making illegal immigrants ineligible for back pay makes
them much more attractive to crooked employers and exacerbates lack of
control over the border.

A Denver Post newspaper editorial called the Supreme Court's action
"bizarre reasoning" and the Charleston (West Virginia) Gazette said
the blow against illegal immigrant workers was, perhaps unwittingly,
against all American workers as well.

Noting that President Bush has "properly opened discussions about
creating a new form of guest worker status," the Minneapolis Star
Tribune said that until government finds ways to turn those talks into
policy, "there will be even more conflicted stories about America
needing, and neglecting, this portion of its workforce."

(The Washington File is a product of the Office of International
Information Programs, U.S. Department of State. Web site:

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