Effect given to the recommendations of the committee and the Governing Body - Report No 348, November 2007

Case No 2227 (United States of America) - Complaint date: 18-OCT-02 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 79. The Committee last examined this case – which concerns the effects that the inadequacy of the remedial measures left to the NLRB in cases of illegal dismissals of undocumented workers, as a result of the decision of the Supreme Court in the case of Hoffman Plastic Compounds v. National Labor Relations Board – at its November 2006 meeting (340th Report, paras 90–97). On that occasion, the Committee recalled its previous recommendation for measures to explore possible solutions, in full consultation with the social partners concerned, to redress the inadequacy of remedial measures left to the NLRB in cases of illegal dismissals of undocumented workers and regretted that the Government merely referred to general avenues available to workers’ and employers’ organizations to participate in the administrative process of creating rules and regulations and for submitting legislative proposals and requests. The Committee requested to be kept informed of measures taken or envisaged to address this inadequacy. The Committee also requested information on whether the judgement in Majlinger v. Cassino Contracting Corp., 802 N.Y.S.2d 56 (App. Div. 2005) had been appealed and if so, to keep it informed of the final judgement in this matter.
2. 80. In a communication dated 10 April 2007, the Government indicates that US case law and practice has continued to support the US position that the Hoffman decision does not restrict freedom of association. There is still not a single case that indicates that the rights of workers to form or join a union have been adversely affected by the decision. Federal agencies, including the NLRB and the US Department of Labor (DOL), continue to vigorously enforce labour laws without regard to a workers’ immigration status.
3. 81. In response to the Committee’s specific request for information on the Majlinger case, the US Government reports that the decision was appealed to the Court of Appeals of New York, the highest court in the State. In a decision that consolidated two cases addressing whether an undocumented alien injured at a work site as a result of state labour law violations is precluded from recovering lost wages due to immigration status, the Court of Appeals affirmed that neither Hoffman nor the Immigration Reform and Control Act (IRCA) prevented undocumented workers from recovering lost wages under state law. See Balbuena v. IDR Realty, LLC, 6 N.Y.3d 338 (2006). In that same case, the Court of Appeals reversed the ruling in Balbuena v. IDR Realty LLC, 787 N.Y.S.2d 35 (App. Div. 2004), which had dismissed an employee’s claim for lost earnings based on wages the plaintiff might have earned in the United States.
4. 82. The Balbuena decision makes clear that Hoffman does not preclude an undocumented alien from recovering lost wages under New York state law. State courts in Virginia and California, the only state courts outside of New York that have published decisions that have considered Hoffman since the United States submitted its report in September 2005, have also refused to extend the decision beyond its intended scope.
5. 83. In the most recent federal court consideration of Hoffman, the US Court of Appeals, Second Circuit, affirmed a New York District Court decision allowing an undocumented worker injured in a construction accident to recover compensatory damages for lost US earnings. Other published decisions that have considered Hoffman have held that Hoffman does not preclude recovery for unpaid wages under the Fair Labor Standards Act (FLSA) or discrimination under Title VII of the Civil Rights Act (Title VII). See, e.g., Chellen v. John Pickle Co., Inc., 446 F.Supp.2d 1247 (N.D.Okla. 2006) (holding that Hoffman does not preclude an award of back pay for work actually performed under the FLSA or Title VII). In what may be the most thorough analysis of Hoffman by a federal court, the US District Court in New Jersey made clear that coverage of undocumented workers under the FLSA is not inconsistent with the IRCA. Zavala v. Wal-Mart Stores, Inc., 393 F.Supp.2d 295, 322 (D.N.J. 2005).
6. 84. Decisions by the NLRB continue to uphold the principle that undocumented workers are covered employees under the National Labor Relations Act (NLRA). In Concrete Form Walls, Inc., 346 NLRB No. 80 (2006), the NLRB rejected the employer’s contention that undocumented workers are not “employees” within the meaning of the NLRA, and determined that these individuals were valid voters in a union representation election. Further, the NLRB concluded that even if the employees were undocumented workers, the employer could not rely on that status to justify an unlawful discharge based on anti-union animus. Finally, given the coercive impact that such discharges would have on other similarly situated employees within the small bargaining unit, the Board concluded that traditional remedies would be insufficient to allow a fair rerun election, and ordered the extraordinary remedy of requiring the employer to bargain with the union based on the union’s pre-election showing of majority support. In large part, the NLRB found this remedy appropriate because the remainder of the employer’s workforce – almost entirely Spanish-speaking employees with questionable authorization to work in the United States – was particularly vulnerable to the threat inherent in the discharges: vote in the election and risk having your status questions.
7. 85. With regard to measures taken or envisaged to address the impact of the Hoffman decision, the Government indicates that it respectfully disagrees with the CFA’s conclusions on the “inadequacy” of the remedies against anti-union discrimination resulting from the Hoffman decision and reiterates that the available remedies are not inadequate to protect freedom of association. There is no credible empirical evidence that post-Hoffman remedies available to undocumented workers have proven ineffective in protecting their right to join or form unions. As explained by the Supreme Court in Hoffman, employers that are found to violate the rights of covered employees under the NLRA remain subject to significant sanctions.
8. 86. Not long after the Hoffman decision, the NLRB’s Office of the General Counsel prepared a memorandum setting out the remedies that remain available to the NLRB in cases involving the dismissal of workers who secure their employment through criminal fraud. As explained in prior US observations, such remedies include back pay for work performed; reinstatement where an employer knowingly hires an undocumented worker, if the employee obtains legal authorization to work in the United States; orders that an employer cease and desist its violations of the NLRA, subject to contempt proceedings; and back pay in non-discharge situations where a worker has continued to be employed but at unlawfully imposed terms (e.g., unilateral change in pay or benefits). The NLRB may also seek formal settlements for employees in cases where employers knowingly hire undocumented workers and use their lack of work authorization to threaten and discharge them in retaliation for union-related activities. In addition, the General Counsel has advised NLRB regional offices to seek to compel an employer to continue to assist undocumented workers in their efforts to become regularized, if the discontinuance of such assistance is improperly motivated by anti-union sentiment. Perhaps most importantly, the NLRB continues its practice of not inquiring as to the status of an individual’s presence in this country during investigative proceedings. Such an approach minimizes the likelihood that an employee’s status would become an issue during an NLRB investigation. In fact, in Hoffman, the issue of immigration status only arose because the employee admitted on the witness stand that he was undocumented throughout the back-pay period.
9. 87. The US President has recommended passage of comprehensive immigration reform to address all aspects of the US immigration system, and the US Congress is engaged in a wide-ranging national debate on immigration policy. During this debate, worker and employer representatives have had and will continue to have an opportunity to express their views on all aspects of immigration policy.
10. 88. In conclusion, the Government indicates that contrary to concerns raised immediately after the issuance of the Hoffman decision, federal and state court decisions that have considered Hoffman have not supported the conclusion that post-Hoffman remedies available to undocumented workers under the NLRA are inadequate to protect their rights to freedom of association. Similarly, the actions of federal agencies, by continuing to enforce US labour laws, regardless of a worker’s immigration status, rebut the notion that undocumented workers lack sufficient access to remedies for enforcing worker rights. Accordingly, the US Government respectfully disagrees with the CFA’s concern that the Hoffman decision has had a negative effect on the protection of freedom of association rights.
11. 89. The Committee takes due note of the detailed information provided by the Government with regard to the impact of and reference to the Hoffman decision in subsequent jurisprudence, largely concerning compensation for damages in cases of occupational accidents. Notwithstanding the analysis of the NLRB General Counsel relating to formal settlements in certain cases and the encouragement of assistance to undocumented workers to enable them to become regularized, the Committee recalls that the remedies available as a result of the Hoffman decision are limited to: (1) a cease and desist order in respect of violations of the NLRA; and (2) the conspicuous posting of a notice to employees setting forth their rights under the NLRA and detailing the prior unfair practices, with a possible sanction in the case of contempt. The Committee once again notes that such remedies do not however sanction the act of anti-union discrimination already committed, but only act as possible deterrents for future acts, an approach which is likely to afford little protection to undocumented workers who can be indiscriminately dismissed for exercising freedom of association rights without any direct penalty aimed at dissuading such action [see 332nd Report, para. 609]. In light of the above, and given the recent steps taken for comprehensive immigration reform, the Committee requests the Government to take steps, within the context of the ongoing debate in this regard, to consult the social partners concerned on possible solutions aimed at ensuring effective protection for undocumented workers against anti-union dismissals. It requests the Government to keep it informed of developments in this regard.