Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009

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. 87. The Committee last examined this case – which concerns the effects that the inadequacy of the remedial measures left to the National Labor Relations Board (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. NLRB – at its November 2007 meeting [see 348th Report, paras 79–89]. On that occasion, the Committee requested the Government to take steps, within the context of the ongoing debate on comprehensive immigration reform, to consult the social partners concerned on possible solutions aimed at ensuring effective protection for undocumented workers against anti-union dismissals.
2. 88. In a communication dated 11 September 2008, the Government indicates that the Hoffman decision continues to be applied narrowly, and has not been interpreted to diminish freedom of association rights for undocumented workers. Since the United States last reported on Case No. 2227, there has been only one case that considered the Hoffman decision in the context of freedom of association. In Agri Processor Co., Inc. v. NLRB, the US Court of Appeals for the District of Columbia held that undocumented workers were employees protected by the National Labor Relations Act (NLRA) and shared a community of interest warranting placement in a bargaining unit with co-workers. The decision followed Supreme Court precedent in Sure-Tan v. NLRB, and the NLRB in Concrete Form Walls, Inc. (described in the Government’s previous report to the ILO), both of which had held that undocumented workers were employees protected under the NLRA. Thus, there is still not a single case that evinces that the rights of workers to form or join a union have been adversely affected by the Hoffman decision.
3. 89. Federal courts have also continued to limit the Hoffman decision’s impact in connection with other federal and state labour laws. For example, in King v. Zirmed, Inc., the Court rejected an attempt to expand Hoffman to deprive undocumented workers’ basic contract rights. In Incalza v. Fendi North America, Inc., the Ninth Circuit Court of Appeals refused to apply Hoffman in a situation where an employee would be able to resolve a work authorization problem expeditiously, and determined that the Immigration Reform and Control Act (IRCA) did not require the employer to terminate the worker. The US District Court in Minnesota held that even if the plaintiff was undocumented, the worker still had standing to pursue her sexual harassment and retaliation claim under Title VII of the Civil Rights Act of 1964. See EEOC v. Restaurant Co. Finally, in Perez-Farias v. Global Horizon, Inc., the US District Court for the Eastern District of Washington refused to read the IRCA or the Hoffman decision as allowing defendants to question plaintiff class members about their immigration status in a suit alleging violations of their work agreements under state and federal law.
4. 90. State courts have been just as consistent in refusing to extend the Hoffman decision beyond its limited scope. In Reyes v. Van Elk, Ltd, the California Court of Appeal held that Hoffman did not prohibit the undocumented plaintiffs from having standing to raise their prevailing wage claim. In Pineda v. Kel-Tech Constr., Inc., the New York Supreme Court in New York County held that a worker who submits false documents to gain employment is not barred from recovering unpaid prevailing wages for work already performed. In another case, involving lost wages due to workplace injuries, the same Court denied the defendant’s attempts to inquire into the plaintiff’s immigration status. See Gomez v. F & T Int’l, LLC., Lastly, in Coma Corp. v. Kansas Dept of Labour, the Kansas Supreme Court held that neither the IRCA nor the Hoffman case pre-empted the application of the Kansas Wage Payment Act to earned, but unpaid, wages of an undocumented worker.
5. 91. Consistent with case law and long-standing practice, US federal agencies responsible for labour protections, including the NLRB and the Department of Labor, continue to enforce their laws without regard to a worker’s immigration status. In addition, US government agencies continue to educate workers, including undocumented workers, about their right under US labour laws. For example, over half of the NLRB’s regional offices have produced regional newsletters and a significant number of those have been translated to Spanish, which have been posted on the NLRB web site. The NLRB Outreach Program has Outreach business cards that have been translated into Spanish and Ilocano and Tagalog (two prominent languages in the Philippines). The NLRB is also in the final stages of production of a DVD entitled “The NLRB Conducts a Union Representation Election” that provides basic information about representation cases and protected concerted activities, which will be translated into Spanish. The DVD will be distributed to community groups through the field offices’ Outreach Program. With the NLRB’s General Counsel’s outreach initiative, emphasizing “non-traditional” outreach, all of the field offices have made it a point to reach out to non-English speaking groups and attended fairs and conferences that have a tendency to involve immigrant workers. In addition, the Department of Labor has now translated its Wage and Hour Division Fact Sheet (No. 48), on the effect of the Hoffman decision on labour laws enforced by the Department into five major languages spoken by immigrant communities in the United States. The fact sheet is therefore now available in Spanish, Korean, Chinese, Thai and Vietnamese at the Department’s Wage and Hour web site.
6. 92. Federal agencies also meet regularly, usually every two to three months, with immigrant worker representatives as part of the Immigration Worker Round Table hosted by the Department of Homeland Security (DHS). The meetings are an opportunity for agencies such as the DHS’s Immigration and Customs Enforcement, the Department of Labor’s Wage and Hour Division, the NLRB, the Office of Special Counsel for Immigration-related Unfair Employment Practices in the Civil Rights Division of the Department of Justice, and the Department of Health and Human Services to discuss and share information about issue that affect immigrant workers, including the Hoffman decision, with groups such as Change to Win, the Services Employees International Union, the Mexican American Legal Defense and Education Fund, the American Bar Association, Catholic charities and the National Immigration Forum.
7. 93. In conclusion, the Government indicates that, since the Hoffman decision was issued in 2002, there is no empirical evidence to support the Committee on Freedom of Association’s theory, as expressed in its November 2007 report, that post-Hoffman remedies are “likely to afford little protection to undocumented workers”. Although federal and state courts continue to define the parameters of the Hoffman decision in a variety of labour and employment contexts, six years of case law have yet to result in any cases that have interpreted the decision to prevent undocumented workers from exercising freedom of association. As a result, there has been no need on the part of the US Government to initiate discussions with the social partners to address “possible solutions” to the Hoffman decision. However, US government agencies continue to educate workers, regardless of their immigration status, and their representatives, about their rights under US labour laws. Furthermore, worker and employer representatives continue to be actively engaged in all aspects of the ongoing immigration policy debate in the US Congress.
8. 94. 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 issues other than freedom of association. The Committee also notes in particular, that in one case concerning freedom of association (Agri Processor Co., Inc. v. NLRB), the US Court of Appeals for the District of Columbia held that undocumented workers were employees protected by the NLRA and shared a community of interest warranting placement in a bargaining unit with co-workers, a matter that was not called into question in the Hoffman case. Furthermore, the Committee notes the activities described by the Government which aim at educating workers, including undocumented workers, about their rights under US labour laws, including freedom of association rights.
9. 95. The Committee observes, nevertheless, that the above does not alter the fact that, as a result of the Hoffman decision, the remedies available in cases of illegal dismissals of undocumented workers have been 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 sanction the act of anti-union discrimination already committed, but only act as possible deterrents for future acts. Such an approach 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, the Committee once again requests the Government 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.