Even before Hoffman, illegal immigrants were effectively at the employer's mercy.
After Hoffman, they clearly are. What avenues do they have? What avenues do they pursue now? Almost none. It's just unreasonable to think that the law protects illegal workers' pay. The practical barriers are just too high.
Look, I understand why, but lefties are doing themselves and everyone else a disservice trying to persuade themselves that undocumented workers have a real shot at a decent life in America. Right now, the choices are ugly: remain a legal underclass in the U.S. or go back to extremely difficult economic situations back home.
It's heartbreaking, but pretending does nobody any good. Either illegals have to become citizens (And I would be in favor of a huge amnesty, fo course) or they have to go home. It's just not acceptable to have millions of countryless people here in America who can be taken advantage of by employers at will. That just makes no sense.
The left has to stop pretending that this can go on indefinitely.
boddi
On 12/19/06, Yoshie Furuhashi <critical.montages at gmail.com> wrote:
> On 12/19/06, boddi satva <lbo.boddi at gmail.com> wrote:
> > Unionization is an exercise of citizenship rights. It's hard enough
> > getting Americans to take the risk of a company action against them.
> > If the workers are illegals, the company just has to call the INS.
> > Hell, they don't even have to give them their back pay.
>
> That is NOT true. Most US labor laws do not turn on whether workers
> are citizens or documented immigrants or undocumented immigrants.
> Even after Hoffman Plastic Compounds, Inc. v. NLRB (2002,
> <http://www.law.cornell.edu/supct/html/00-1595.ZS.html>), a company
> still has to pay back wages to undocumented workers _for the hours
> they actually worked_, though not for the hours they would have worked
> but for illegal dismissal:
>
> <http://www.dol.gov/esa/regs/compliance/whd/whdfs48.htm>
> Fact Sheet #48: Application of U.S. Labor Laws to Immigrant Workers:
> Effect of Hoffman Plastics decision on laws enforced by the Wage and
> Hour Division
>
> On March 27, 2002, the U.S. Supreme Court ruled in Hoffman Plastic
> Compounds, Inc. v. NLRB, No. 00-1595 (S. Ct.), that the National Labor
> Relations Board (NLRB) lacked authority to order back pay to an
> undocumented worker who was laid off from his job because of union
> activities.
>
> In Hoffman Plastics, the Supreme Court decided that providing back pay
> to the undocumented worker would conflict with policies under U.S.
> immigration laws. Those laws require employees to present documents
> establishing their identity and authorization to work at the time they
> are hired. An employer must check those documents and cannot knowingly
> hire someone who is not authorized to work. In Hoffman Plastics, the
> employee presented false documentation when he was hired. He was later
> laid off for trying to organize a union, in violation of the National
> Labor Relations Act (NLRA). The NLRB sought back pay for a period of
> time after the layoff. The Supreme Court concluded that back pay
> should not be awarded "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 Supreme Court's decision does not mean that undocumented workers
> do not have rights under other U.S. labor laws. In Hoffman Plastics,
> the Supreme Court interpreted only one law, the NLRA. The Department
> of Labor does not enforce that law. The Supreme Court did not address
> laws the Department of Labor enforces, such as the Fair Labor
> Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker
> Protection Act (MSPA), that provide core labor protections for
> vulnerable workers. The FLSA requires employers to pay covered
> employees a minimum wage and, in general, time and a half an
> employee's regular rate of pay for overtime hours. The MSPA requires
> employers and farm labor contractors to pay the wages owed to migrant
> or seasonal agricultural workers when the payments are due.
>
> The Department's Wage and Hour Division will continue to enforce the
> FLSA and MSPA without regard to whether an employee is documented or
> undocumented. Enforcement of these laws is distinguishable from
> ordering back pay under the NLRA. In Hoffman Plastics, the NLRB sought
> back pay for time an employee would have worked if he had not been
> illegally discharged, under a law that permitted but did not require
> back pay as a remedy. Under the FLSA or MSPA, the Department (or an
> employee) seeks back pay for hours an employee has actually worked,
> under laws that require payment for such work. The Supreme Court's
> concern with awarding back pay "for years of work not performed, for
> wages that could not lawfully have been earned," does not apply to
> work actually performed. Two federal courts already have adopted this
> approach. See Flores v. Albertson's, Inc., 2002 WL 1163623 (C.D. Cal.
> 2002); Liu v. Donna Karan International, Inc., 2002 WL 1300260
> (S.D.N.Y. 2002).
>
> The Department of Labor is still considering the effect of Hoffman
> Plastics on other labor laws it enforces, including those laws
> prohibiting retaliation for engaging in protected conduct.
>
> For more information about the effect of the Hoffman Plastics case or
> the provisions of the FLSA and MSPA, call the Department of Labor's
> toll free help line at 1-866-4USWAGE (1-866-487-9243); TTY
> 1-877-889-5627. Information about the FLSA and MSPA is also available
> on the internet at www.dol.gov.
>
> <http://www.dollarsandsense.org/archives/2002/0902scher.html>
> 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
>
> This article is from the September/October 2002 issue of Dollars and
> Sense: The Magazine of Economic Justice available at
> http://www.dollarsandsense.org/archives/2002/0902scher.html
>
> This article is from the September/October 2002 issue of Dollars &
> Sense magazine.
> issue 243 cover
>
> 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.
> --
> Yoshie
> <http://montages.blogspot.com/>
> <http://mrzine.org>
> <http://monthlyreview.org/>
>
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