Hoffman: Lower Courts Limit Impact of High Court's Decision Barring Undocumented Worker from Receiving Back Pay

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

HOFFMAN: LOWER COURTS LIMIT IMPACT OF HIGH COURT'S DECISION BARRING UNDOCUMENTED WORKER FROM RECEIVING BACK PAY
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

The impact of the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 122 S. Ct. 1275—in which the Court barred an undocumented worker from receiving back pay (under the National Labor Relations Act) as a remedy for having been unlawfully fired—was immediately felt across the country by immigrant workers and their advocates. Amidst the confusion and misinformation about the implications of this decision, the rights of low-wage immigrant workers have been revindicated by three recent lower court decisions. (For a summary of the Hoffman decision, see "Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing," Immigrants' Rights Update, Apr. 12, 2002, p. 10.)

In the first case, Flores et al. v. Albertsons, Inc. et al, 2002 U.S. Dist. LEXIS 6171 (C.D. Cal. Apr. 9, 2002), the federal district court for the Central District of California held that Hoffman does not affect the right of undocumented workers to be paid for work actually performed and that therefore the plaintiffs' immigration status was irrelevant in this class action of janitors claiming unpaid wages under the Fair Labor Standards Act. The defendants had petitioned the district court judge to review and reconsider a lower decision by the magistrate judge, who held that the defendants could not ask for documents pertaining to the immigration status of any of the class members. The district court judge affirmed the magistrate judge's findings that allowing defendants access to those records would have an "in terrorem effect" on the janitors, and that it was highly "likely that any undocumented class member forced to produce documents related to his or her immigration status will withdraw from the suit rather than produce such documents and face termination and/or potential deportation."

In a similar holding, a superior court in San Diego, California, found that Hoffman does not limit the rights of undocumented workers seeking unpaid minimum wages and overtime under the California Labor Code. After it had already decided in favor of the worker shortly before the Hoffman decision, the court in Valadez v. El Aguila Taco Shop (Case No. GIC 781170) reopened the case sua sponte (on its own motion) and asked the parties to brief the impact of Hoffman on California wage and hour law. Based on the briefing and hearing on Apr. 18, 2002, in which the Division of Labor Standards Enforcement of the California Dept. of Industrial Relations intervened on behalf of the worker, the court upheld the judgment in favor of the worker.

Immediately following the Hoffman decision, the defendant in Rivera et al v. Nibco—a language discrimination case under Title VII of the Civil Rights Act (Title VII) in Fresno, California—immediately filed a motion for reconsideration of an existing protective order granted by the magistrate judge which prohibits the defendant from inquiring into the plaintiffs' immigration status in the discovery process. The defendant argued that the Hoffman decision also limits an undocumented worker's right to back pay under Title VII and that, because some of the 25 plaintiffs might be undocumented, the defense was entitled to information about their immigration status. On Apr. 22, 2002, the federal district court for the Eastern District of California denied the motion for reconsideration, stating that the Hoffman decision was not controlling, since it was not a discovery case. The court noted that the Supreme Court did not address how information about a plaintiff's immigration status could be obtained in the first place. The defendant has now filed a petition with the Ninth Circuit Court of Appeals for an interlocutory appeal regarding the protective order and Hoffman's impact on remedies available under Title VII.

Advocates who would like copies of the briefs in these cases can contact Marielena Hincapié of NILC's Oakland office at 510-663-8282 x. 305 or at hincapie@nilc.org.