Saturday, May 7, 2016
Guest blogger: Gabriela Garcia, first-year law student, University of San Francisco
The Supreme Court’s decision on the Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002) case established a precedent that undocumented immigrants cannot obtain back pay when they are wrongfully terminated. Hoffman Plastic Compounds involved an employee who was terminated for participating in a union at work and was denied back pay for his termination. SCOTUS reasoning for not granting pay back was that they could not award pay back since the worker was working unlawfully. With this decision the court seems to have opened the door for more employers to take actions against their employees for participating in lawful activities that would create a better work environment and burden the employer.
Undocumented immigrants are more likely to suffer from adverse actions from employers because they are less likely to report violations in fear of losing their job or being reported to ICE. The repoort Broken Laws, Unprotected Workers by the Center for Urban Economic Development, National Employment Law Project, and UCLA Institute for Research on Labor and Employment states that “one in five workers . . . reported that they had made a complaint to their employer or attempted to form a union in the last year. Of those, 43 percent experienced one or more forms of illegal retaliation from their employer or supervisor. For example, employers fired or suspended workers, threatened to call immigration authorities, or threatened to cut workers’ hours or pay.” After the decision in Hoffman Plastic Compounds, undocumented employees trying to form unions have even less protections and less of an incentive to fight for their rights.
The ACLU guide No Free Pass to Harass states that “[i]mmigrant women are exceptionally vulnerable to abusive workplace conditions” and they are less likely to report it. Although the guide focuses on women and the abuses they suffer, immigrant men also suffer from workplace violations and do not report them. The guide does point out that threatening a worker that he or she will be reported to ICE constitutes violation under many states laws. However, based on my interaction with the immigrant community, this knowledge does not necessarily encourage workers to report violations since they do not want to risk being put in deportation proceeding or losing their job since they need to sustain their family.
The incentive to report abuses becomes less appealing when news outlets report the possible consequences. For instance, the Los Angeles Times reported the story of Diaz, an undocumented immigrant who worked on the clean up efforts hurricane Gustav and complained about disparate treatment suffered by him and other minorities. He ended up in deportation proceedings.
To attempt to provide some sort of safety net for undocumented workers who speak up against labor violations on November, 2015 U.S. Congresswoman Judy Chu introduced the Protecting Our Workers from Exploitation and Retaliation (POWER) Act. According to the Los Angeles Times, the POWER Act would give workers like Diaz provisional "U visas." The U-visa would eventually lead those who speak up to eventually obtain legal permanent residency. Pro-immigrant organization such as the National Immigration Law Center believe this legislation is a remedy for the Hoffman Plastic Compounds, Inc. v. National Labor Relations Board case. The legislation is progressing slowly, but it seems to be a good start to helping to stop employers from abusing their employees’ rights.