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People of certain national origins have been subject to heightened scrutiny and a tide of national sentiment that does not necessarily favor immigrants, illegal or not. It is against this backdrop that the U.S. Supreme Court has dealt a blow to undocumented illegal workers who seek to benefit from the statutory protections afforded to legally authorized employees. Although undocumented workers may lawfully engage in union-organizing activities and be free from discrimination on account of such activities, they are not entitled to the same remedies under the National Labor Relations Act (NLRA) as employees authorized to work in this country. In Hoffman Plastic Compounds Inc. v. NLRB, 2002 U.S. LEXIS 2147 (2002), the Supreme Court held that such an approach is consistent with the policies embodied in the Immigration Reform and Control Act of 1986 (IRCA). The Hoffmandecision resolves a long-standing division among the various U.S. Courts of Appeals on whether the National Labor Relations Board (NLRB) may award back pay to undocumented workers. In a 5-4 decision, the Court held that the NLRB could not award backpay to such workers because to do so would contravene federal immigration policy. MEXICAN NATIONAL SEEKS SAME REMEDIES Prior to his hire by Hoffman Plastic Compounds, Jose Castro presented documents to his employer that appeared to verify his authorization to work in the United States. Several months later, Castro and other employees supported a union-organizing campaign and distributed authorization cards to co-workers. One month later, Hoffman laid off Castro and other employees who engaged in union activities. The NLRB found that Hoffman unlawfully laid off Castro in retaliation for his union activities. In a proceeding to determine the remedy for Hoffman’s violation, Castro revealed for the first time that he was born in Mexico and that he never had been legally authorized to work in the United States. Castro also disclosed that he presented a birth certificate belonging to a friend from Texas. He admitted that he used this same birth certificate to obtain a California driver’s license and a social security card. The NLRB concluded that although case law established that Castro was not entitled to reinstatement, the employer was required to award him $66,951 of back pay, plus interest, from the date of his layoff to the date Hoffman first learned of his illegal work status. In Hoffman, the Court disagreed with the NLRB, reversed a 5-4 decision by the full U.S. Court of Appeals for the District of Columbia Circuit — which had affirmed the NLRB’s remedial orders — and held that an award of back pay to an undocumented worker would conflict with IRCA. BALANCING ACT Notwithstanding their illegal work status, undocumented workers have the right to organize into labor unions and employers cannot retaliate against them for exercising their rights under the NLRA. In Hoffman, however, the Court concluded that the remedies of undocumented workers are limited. They have no right to reinstatement or back pay. Rather, remedies are limited to subjecting the employer to a “cease and desist ” order and a requirement that the employer post notices about prior unfair practices. In so holding, the Court balanced the NLRA against IRCA. Hoffmanwas not the first time the Court faced a potential conflict between the NLRA and federal immigration policy. In Sure-Tan Inc. v. NLRB, 467 U.S. 883, 81 L.Ed. 2d 732, 104 S. Ct. 2803 (1984), two companies had retaliated against undocumented workers for engaging in union activity by reporting them to the Immigration Naturalization Service (INS). The NLRB directed the companies to reinstate the workers and pay six months’ back pay. The Supreme Court affirmed the NLRB’s decision and found that the NLRA, including its remedy provisions, applied to undocumented workers. To avoid a conflict between the NLRA and the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U.S.C. � 1101 et seq., however, reinstatement was subject to an employee’s proof of legal re-entry into the United States. Likewise, the award of back pay was tolled during any period when the undocumented worker was unlawfully present and employed in the United States. 467 U.S., at 903. Two years after Sure-Tan, Congress passed IRCA, a comprehensive statute prohibiting the employment of undocumented workers. In Hoffman, the Court opted not to revisit the Sure-Tandecision, which had been previously cited by the NLRB and courts to reach opposite conclusions concerning remedies available to undocumented workers. Instead, the Court took a broader approach by analyzing the lower court’s decision in light of federal immigration policy set forth in IRCA. The Court recognized that, although the NLRB maintained broad discretion to award remedies, the Court has set aside awards of reinstatement or back pay to employees found guilty of illegal conduct in connection with their employment. Moreover, the Court has not deferred to the NLRB’s expertise when such remedies were inconsistent with other federal statutes, such as the Bankruptcy Code, the Interstate Commerce Act and, in Hoffman, IRCA. In Hoffman, the Court acknowledged that when the NLRB’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.” The Court found that the NLRB was asking it to “award back pay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud. “ The Court cited federal immigration policies set forth in IRCA that carry civil fines and potential criminal prosecution. Under IRCA, the Court noted that violations were twofold: Violations occurred when an undocumented worker tenders fraudulent documentation to verify his authorization to work and when an employer knowingly hires or retains an undocumented worker. A decision to award back pay to an undocumented worker would contravene such policies. The Court concluded that “allowing the Board to award back pay 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.” Although the Court rejected the NLRB’s proposed back pay remedy, it affirmed the propriety of a cease- and-desist order and required posting detailing Hoffman’s past unfair practices. In the Court’s view, Hoffman did not get off “scot free;” such remedies were sufficiently effective deterrents. If Hoffmanfailed to comply, it would be subject to contempt proceedings. DO SUCH REMEDIES SERVE AS A DETERRENT? Monetary remedies tend to deter future illegal conduct. The nonmonetary remedies awarded in Hoffmanmay not necessarily deter an employer from firing an undocumented worker or reporting the undocumented worker to the INS in retaliation for engaging in union activity. In the Court’s dissenting opinion, Justice Stephen A. Breyer opined that “[w]ithout the possibility of the deterrence that back pay provides, the Board can impose only future-oriented obligations upon law-violating employers — for it has no other weapons in its remedial arsenal. And in the absence of the back pay weapon, employers could conclude that they can violate the labor laws at least once with impunity. ” Thus, some could agree with Justice Breyer’s dissenting opinion that Hoffmanactually creates an incentive for employers to violate labor laws because employers can retaliate without the prospect of financial penalties, and to hire illegal aliens because the cost of an initial labor law violation is lower. Indeed, as a result of the Hoffmandecision, labor unions, which have often relied on undocumented workers for organizing efforts, may face an uphill battle in their quest to gather support for their union campaigns due to the prospect of undeterred retaliation. PROTECTIONS UNDER OTHER STATUTES The Hoffmandecision also will inevitably lead to considerable debate concerning the availability of employment remedies to undocumented workers under other employment statutes. The Court’s determination that the policies embodied in IRCA take precedence over an employee’s remedies under the NLRA opens the possibility that remedies available under other employment statutes, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act, will not be available to undocumented workers. The Equal Employment Opportunity Commission (EEOC) has already adopted the NLRB’s position that undocumented workers are entitled to the same relief as other victims of employment discrimination, with certain limitations. According to the EEOC in its 1999 Enforcement Guidance on Remedies Available to Undocumented Workers, “undocumented workers are particularly vulnerable to employer abuse ” and “ awarding monetary remedies irrespective of a worker’s unauthorized status promotes the goal of deterring unlawful discrimination without undermining the purposes of the immigration laws. “ In formulating its position, the EEOC relied on the Supreme Court’s decision in Sure-Tanand rejected any argument that the subsequent enactment of IRCA precluded an award of back pay. The EEOC’s position is not binding. In fact, not all courts have adopted its position. See Egbuna v. Time Life Libraries Inc., 153 F.3d 184 (4th Cir. 1998), cert. denied, 119 S.Ct. 1034 (1999) (holding that applicant who is unauthorized to work has no cause of action under Title VII). Because the EEOC’s position is not binding, Hoffmansurely will revitalize the debate concerning remedies for undocumented workers who are mistreated in the work force. DID THE COURT OVERSTEP ITS BOUNDS? Ultimately, some will wonder how the Court could reach such a conclusion rather than defer to the NLRB’s discretion and expertise to fashion remedies. Apparently the attorney general charged with the enforcement of immigration law concluded that the NLRB’s decision was proper. Assuming that the NLRB’s decision was reasonable, one could argue that the decision was lawful and should have been upheld. See Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 842-843, 81 L.Ed.2d 694, 104 S. Ct. 2778 (1984) (holding that courts must uphold reasonable agency positions). Obviously, given the split decisions of both the D.C. Circuit and the Supreme Court, the issue presented in Hoffmanwas and will continue to be a source of vigorous debate. Donna Y. Porter is an associate in the labor and employment department of Nixon Peabody’s, www.nixonpeabody.com, Boston office.

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