When Is a Labor Law Violation Not a Labor Law Violation?

In Hoffman Plastics, the Supreme Court struck a blow against the rights of undocumented workers. Immigrant rights advocates are fighting back.

ABBY SCHER

Jesús Pérez owns a butcher shop in Washington Heights, a largely Dominican community in the northern section of Manhattan. Pérez's shop is not large but it is worth paying attention to, and not for the quality of his rib roast. It's because last March, Mr. Pérez's lawyer invoked the ominous words "Hoffman Plastics" in a nasty letter he wrote refusing unpaid wages to one of Pérez's workers.

Hoffman Plastics is a recent Supreme Court decision that denied back pay to a machine operator whom a California chemical company had illegally fired for union activity. Why? Because he was an undocumented immigrant. The National Labor Relations Board (NLRB) had told Hoffman Plastics to give this man 3-1/2 years of back pay—the wages he would have earned if he hadn't been illegally fired—saying he deserved the same remedy that a documented worker would receive in the same circumstances. But the Supreme Court countered that immigration law takes precedence over labor law. "Allowing the Board to award back pay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy...and encourage future violations," wrote Chief Justice William Rehnquist in the 5-4 decision.

Now, awarding back pay to someone who was fired is not the same as owing wages for work actually done, a distinction apparently lost on Jesús Pérez's lawyer. But other lawyers with less garbled ideas about the potential meaning of the Hoffman decision are also testing the waters in courts across the country, trying to use the decision to overturn workers compensation awards and end enforcement of minimum wage and overtime laws for undocumented immigrants. This is happening even though Hoffman Plastics' lawyer argued explicitly that minimum wage and overtime laws should not be affected by the Court's decision in the case.

So far, these attempts have been unsuccessful. But immigrant rights advocates fear they will spend so much time putting out little legal fires across the country that they will be kept off balance and stuck in defensive mode, never able to set the agenda themselves. "It stops cases from moving forward and distracts resources," says Michael Wishnie, a New York University law professor who worked on Hoffman.

Other lawyers have already blocked at least two of these cases and are fighting numerous others. In Los Angeles, a District Court judge foiled an attempt by Albertsons, a supermarket chain, to intimidate janitors who had filed a class-action suit seeking the minimum wage for their past work. Hoffman, the judge said, was irrelevant to the case, and the company could not investigate the immigration status of its workers. A federal judge in New York said the same thing in June to garment manufacturer Donna Karan/DKNY, which is the defendant in a longstanding suit for overtime pay in New York City sweatshops.

Greg Shell of Florida Legal Services is confident he can beat back Mecca Farms, a large agricultural producer trying to weasel out of paying the minimum wage to thousands of its packinghouse and field workers who are now waging a class action suit against the company. "It's probably one of the ten largest growers in the U.S. [and] uses virtually all undocumented workers. And they're saying the workers have no rights to sue!" said Shell. "Hoffman Plastics has given them new hope. Their heart soared!" Ironically, he added, the head of Mecca Farms is vice chairman of Florida Farmers, a trade association that decries conditions in Mexican fields to win trade barriers that support American growers.

But while minimum wage and overtime laws may be less vulnerable, other areas of labor law are at greater risk, particularly those involving money damages such as anti-discrimination and workers compensation cases, says Shell. In Michigan, a company called Eagle Alloy is claiming it does not need to provide workers compensation to an undocumented worker. That case is now in the District Court of Appeals.

In a move that would have nationwide impact, the Equal Employment Opportunity Commission in June said it was reviewing its stance that federal anti-discrimination laws apply to all workers, no matter what their immigration status.

Labor activists are not depending on the courts to save them. They are lobbying regulators to prevent the extension of the Supreme Court's interpretation in Hoffman to other areas of law. The Washington State Department of Labor announced it would continue to enforce state labor laws, including workers comp, for all workers. In California, a novel bill is now before the state Senate that would exact penalties on any employer engaging in unfair labor practices against undocumented workers, put the money in a state fund, and then pay it out to the workers. The California AFL-CIO is the lead sponsor, backed by the Mexican American Legal Defense and Education Fund, La Raza, and other civil rights and labor groups.

In Washington, D.C., the AFL-CIO is quietly pulling together a bipartisan coalition to promote legislation clearly stating that all workers are covered by labor law and that employers must pay penalties if they violate the law, no matter what the immigration status of the worker. The coalition was given a narrow opening by the Supreme Court itself. "The Supreme Court said in its decision that if Congress disagreed with its balance of labor law and immigration law to make it plain," said Josh Bernstein, senior policy analyst at the National Immigration Law Center, which is working with the AFL. "We argue there is no contradiction. If you enforce labor law there is less incentive to violate the immigration law. This is even what the Bush administration said. It is only the Supreme Court that says otherwise." According to Bernstein, the bill might come up in December. "We have a good shot at being successful," he added.

In this campaign, labor and immigrant advocacy groups may find themselves with strange bedfellows. Like the garment manufacturers and Latino business organizations who filed an amicus brief opposing Hoffman on the grounds that it would create unfair competition with companies underpaying undocumented workers. Or the anti-immigrant groups that fear Hoffman will encourage the sweatshop economy and its concomitant demand for undocumented workers. And the AFL-CIO must work with allies who remember the Federation's sorry history in defending immigrant rights—it was only in February 2000 that the AFL called for an amnesty program and opposed employer sanctions—as well as those who notice that major state labor federations, like New York's, remain conspicuously silent.

At the grassroots level, Mr. Pérez was not able to stop Make the Road by Walking, the Brooklyn organization representing the worker he was refusing to pay, from picketing his butcher shop. However, other employers may be more successful in silencing and intimidating undocumented workers—and their documented coworkers who fear exposing them to retribution—without even going to court. In July, an undocumented seamstress asked Ursula Levelt, a New York labor lawyer, why she should file an NLRB claim against a scofflaw employer, when she would never see an award. Levelt had no answer for her.

Abby Scher, a former co-editor of Dollars & Sense, is director of Independent Press Association-New York. She is active in post-9/11 immigrant rights organizing.