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On March 27, 2002, The United State Supreme Court ruled in Hoffman Plastic Compounds v. N.L.R.B. that, although undocumented workers are “employees” within the meaning of the National Labor Relations Act (NLRA), they cannot be answered backpay remedies, even if discharged in violation of the Act. The Hoffman decision represents a retrenchment from a trend in which virtually all jurisdictions that had considered the issue found in favor of the workers. The principal rationale in support of these remedies for undocumented workers had been that such awards are not only remedial but also serve important deterrent functions that protect the integrity of the collective bargaining process for all workers. Court have articulated similar reasons in the areas of wages, hours, and workers’ compensation to support coverage of undocumented workers. If Hoffman undermines that basic rationale, the opinion could have a significant and broad ripple effect.

This article will explores the meaning of the Hoffman decision and its potential impact. Part I assesses the historical legal, social and economic contexts that provide the backdrop for the intersection of labor and immigration laws. Part II analyzes the paradoxes generated by legal fictions used to support both sides of the issue in cases that preceded the Hoffman decision and evaluates its likely effect on labor law and other areas. It is hoped that the analysis in Part IV will help formulate strategies that can be used in light of Hoffman to ensure that remedies are obtained in appropriate cases. Part IV also seeks to demonstrate that allowing willful violators of the nations’ immigration and labor laws to enjoy a windfall of their illicit conduct, though seemingly permitted by Hoffman, is inconsistent with U.S. labor and immigration law and basic notions of human rights. Part IV also proposes legislation to reconcile apparently inconsistent policies without resorting to additional and contradictory legal fictions.

Publication Citation

14 La Raza L.J. 103 (2003).