By: Maeher Khosla
Volume IX – Issue II – Spring 2024
I. Introduction
On January 23, 2023, seven immigrant farm workers in Half Moon Bay, California lost their lives in a mass shooting. Upon arriving at the scene, California Governor Gavin Newsom was shocked to learn that “employees were living in shipping containers and … earning just $9 an hour,” $6.50 below the California minimum wage entitled to farm workers. [1] However, these workers failed to expose the workplace abuses they endured out of fear of deportation and retaliatory action by the employer. [2] The workplace abuses experienced by the workers at Half Moon Bay are, unfortunately, not an isolated incident, but rather acutely exemplify the harsh and abusive conditions that many undocumented workers in the US are subjected to. The Immigration Reform and Control Act (IRCA), passed in 1986, effectively proscribed the employment of undocumented workers through the implementation of an employment verification system which ascertained the identity and eligibility of potential employees and prohibited the intentional employment of undocumented workers. This policy creates a chilling effect on undocumented workers deciding to file a claim under US labor law protections, producing employment environments that are conducive to the exploitation and implementation of unfair labor practices for the unauthorized. While IRCA did not explicitly intend to undermine the labor law protections that all workers, including the undocumented, have access to, its implications and administration have significantly curtailed the enforcement of labor law protections for undocumented workers, penalizing them for their immigration status and subjecting them to employer will and unconstrained power that enable the propagation of illegal and inhumane incidents such as that at Half Moon Bay.
This paper aims to examine the aforementioned conditions that both enable and propagate the occurrence of incidents such as that in Half Moon Bay as well as the conditions that engender the fear that many undocumented workers experience. By exploring the implications of the passage of the Immigration Reform and Control Act on the protections afforded to undocumented workers as employees, this paper will argue that IRCA provided a legal basis for the current exploitation of undocumented workers in the United States.
II. Background
i. Immigration and Nationality Act (1952)
Prior to the passage of the Immigration Reform and Control Act, the Immigration and Nationality Act (INA) of 1952, also known as the McCarran-Walter Act, governed the terms and conditions of admission to the United States and the subsequent treatment of said aliens. Under the INA, aliens were to “be excluded from admission into the United States” if “the employment of such aliens will adversely affect the wages and working conditions of the workers in the United States similarly employed,” effectively materializing and confirming the notion that immigrants heighten competition for American jobs. [3] The INA also made “harboring [undocumented] aliens” illegal; [4] however, the “Texas Proviso” explicitly excluded the employment of undocumented immigrants from the definition of “harboring,” therefore, legalizing their employment in the US. [5]
ii. Sure-Tan, Inc v. National Labor Relations Board (1976)
In July, 1976, eight employees of Sure-Tan, Inc., two leather processing companies, which were considered a single integrated employer under the National Labor Relations Act, elected the Chicago Leather Workers Union, Local 431, as their collective bargaining representative. [6] Following a successful union election in December, the company’s President, John Surak, berated those who had voted in favor of the union and subsequently inquired about their immigration status. [7] Of the eleven employees at Sure-Tan, Inc., the majority were undocumented immigrants from Mexico. [8] As a result, Sure-Tan, Inc. promptly objected to the National Labor Relations Board’s election certification, citing that six of the seven eligible voters were “illegal aliens.” [9] Despite this, the National Labor Relations Board (NLRB) certified the union. The next day, Surak reported the presence of undocumented employees to the Immigration and Naturalization Service (INS), which consequently led to the coerced expulsion of five employees to Mexico in order to avoid deportation. [10]
The NLRB held that petitioners (Sure-Tan, Inc.) had violated § 8(a)(1) and (3) of the National Labor Relations Act (NLRA) by requesting the INS investigation as retaliation for the employees’ protected unionization efforts; as such, the petitioners conduct had engendered a “constructive discharge of employees” – the employer purposely created working conditions so intolerable as to force the employees to quit or resign – and, as affirmed by an Administrative Law Judge, must therefore be ordered to cease and desist the unfair labor practices and accommodate the “conventional remedy of reinstatement with backpay” as a result. [11] The United States Court of Appeals for the Seventh Circuit affirmed this order as modified to require that offers for reinstatement be available for four years to allow terminated employees to make arrangements for legal re-entry, along with a suggestion that the NLRB request a minimum compensation of six months worth of backpay, conditioned on evading the requirement that discharged employees must be legally entitled to employment in the United States to receive back pay. [12]
The United States Supreme Court affirmed the judgment of the Court of Appeals as it related to the petitioners’ violation of the NLRA, but reversed the judgment as to the remedies ordered. Specifically, the Supreme Court ruled that the Court of Appeals had extended their authority in compelling the Board to institute a requirement of six months’ back pay. [13] The Supreme Court also held that the implementation of this award relied on both conjectural and speculative presumptions, as there was an absence of evidence ascertaining each employees’ actual circumstances or prospective losses that would equate to six months of back pay. [14] As such, this case was remanded to the Board to dictate alternative remedial sanctions consistent with this order. [15]
iii. The Rights and Denomination of an “Employee”
Writing for the majority opinion, Justice O’Connor notes that undocumented immigrants are considered “employees” under § 2(3) of the National Labor Relations Act. [16] The broad provision outlines specific Congressional exceptions to the denomination of employees, including, but not limited to agricultural workers, independent contractors, and domestic service work. Undocumented immigrants are not plainly included in this, ergo, falling within the broad statutory definition of “employee.” [17]
Furthermore, the majority found that the denomination of undocumented immigrants as “employees” is in accordance with the goals of the National Labor Relations Act to encourage and protect collective bargaining processes. [18] Specifically, the majority opinion cites De Canas v. Bica’s holding that “[a]cceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.” [19] The opinion recognizes that there would, as such, be a subclass of workers created which would undermine overall employment unity and the efficacy of the collective bargaining process. The majority also cites the erosion of the power of “citizens and legally admitted aliens” as a result because of increased competition with a group that is not subjected to the same standards of employment. [20]
The United States Supreme Court thus held that undocumented immigrants are considered employees and entitled to worker protections, including the right to unionize without employer interference in order to protect against the aforementioned adverse effects.
III. Immigration Reform and Control Act (1986)
The Immigration Reform and Control Act (IRCA) was passed in 1986 under the Reagan Administration and represented “the first major revision of America’s immigration laws in decades.” [21] While the Act established a legalization program, which granted amnesty and prospective naturalization to certain farm workers and undocumented migrants who had been residing in the United States illegally prior to 1982, it concomitantly criminalized the employment of “illegal aliens” in the United States. [22] Under IRCA, all employers had to go through an “extensive employment verification system” in order to verify that the immigrant was both lawfully present and legally eligible for employment in the United States. The use of fraudulent immigration papers to subvert this system was also deemed unlawful. [23] Failure to verify an employee’s status could result in “both civil and criminal liability with the imposition of substantial fines ranging from $100 to $1,000 per hire, as well as possible imprisonment for a pattern or practice of noncompliance.” [24] Additionally, the “illegal alien” would be terminated from their position. [25]
While undocumented workers continue to be statutorily afforded “employee” status under § 2(3) of the National Labor Relations Act, the Immigration and Reform Act of 1986 made the prohibition and criminalization of the employment of undocumented workers central to immigration law, stripping undocumented workers of the ability to effectively assert many of the rights afforded to them as “employees” and to obtain, in many instances, adequate remedial action for violations of these rights.
IV. Hoffman Plastics Compounds, Inc. v. National Labor Relations Board (2002)
i. Facts and Ruling of the Case
Hoffman Plastics Compounds, Inc. hired Jose Castro on the basis of fraudulent documents that had appeared to verify his legal authorization to work in the United States. [26] However, following Castro and the other employees’ support of a union-organizing campaign at the Hoffman Plastics Compounds plant, they were terminated. The NLRB held that petitioners (Hoffman Plastics Compounds, Inc.) had violated § 8(a)(3) of the NLRA by terminating Castro and other employees in an effort to curtail union support and subsequently ordered petitioners to cease and desist the unfair labor practices, post a notice of its remedial order, and offer reinstatement and backpay to those terminated. [27]
At a hearing before an Administrative Law Judge to determine the amount of back pay that would be awarded to the employees, Castro admitted that he was born in Mexico and had never been legally admitted nor authorized to work in the United States, gaining employment only after utilizing another person’s birth certificate. [28] Accordingly, the ALJ found that the employees were precluded from receiving employee backpay, as this would be incongruous with the Immigration Reform and Control Act, which prohibited the employment of undocumented workers and the use of fraudulent papers to gain employment in the United States. [29] The Board reversed the ALJ’s decision concerning backpay, stating that the most effective way to achieve “the immigration policies embodied in IRCA” was to apply the protections ensured by the NLRA to undocumented workers and other employees equally. [30]
On certiorari, the United States Supreme Court reversed the Board’s holding. The Court held that awarding backpay to undocumented immigrants would “potentially trench upon federal statutes and policies unrelated to the NLRA” such as those set forth by IRCA, which fail to fall under the NLRB’s authority. [31] The limitations of the Board’s remedial authority was similarly evidenced in Sure-Tan, supra with respect to backpay. Furthermore, the Court ruled that by awarding backpay, it would be effectively encouraging the evasion of immigration authorities and condoning violations of extant immigration law as the employee would only have qualified for backpay by entering and remaining in the United States unlawfully. [32] Justice Rehnquist, writing for the majority opinion, found that the Board already imposed other sanctions against the petitioner such as the imposition of a cease and desist order and a notice detailing the petitioner’s prior unfair labor practices and the rights of employees, sufficiently effectuating national labor policy even in the absence of backpay. [33]
The US Supreme Court thus held that undocumented immigrants are not entitled to backpay as this would (1) undermine the policies effectuated by IRCA, as undocumented workers are not entitled to employment in the US and (2) encourage further violations of both immigration authorities and law.
ii. Dissenting Opinion
As explained in the dissenting opinion, written by Justice Breyer, neither of the aforementioned policy considerations, which deprived undocumented migrants of their right to backpay, achieve their desired impact. [34] With respect to the first consideration concerning the authorization of the NLRB to award backpay to undocumented migrants as undermining the policies set forth by IRCA, the dissent found that “the immigration statutes say that an employer may not knowingly employ an illegal alien, that an alien may not submit false documents, and that the employer must verify documentation … but the statutes’ language itself does not explicitly state how a violation is to effect the enforcement of other laws, such as the labor laws.” [35] In fact, as stipulated by the House Judiciary Committee Report on IRCA, IRCA is not to “be used to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards … to remedy unfair practices committed against undocumented employees for exercising their rights … or for engaging in activities protected by existing law.” [36] As such, the dissent argues that the NLRB’s authorization to award backpay to undocumented workers who have been unjustly terminated does not infringe existing immigration statutes, including IRCA.
With respect to the second consideration, the dissent argues that enabling the NLRB to award backpay to unauthorized workers who had been illegally terminated would “deter unlawful activity that both labor laws and immigration laws seek to prevent.” [37] Backpay as a remedial regime offers a deterrent for employers seeking to violate labor laws and practices, making “labor law enforcement credible.” [38] Critically, the general purpose of the immigration laws’ employment prohibition is to reduce the incentive for US employers to utilize and exploit undocumented migrant labor. However, by limiting the power of the NLRB to enforce labor protections for these workers, the cost to the employer of a labor law violation concerning undocumented workers is substantially lowered, thereby increasing the employer's incentive to employ undocumented workers. [39] These sentiments are similarly expressed in the majority opinion of Sure-Tan, supra.
V. Contemporary Implications
The divestment of undocumented workers from the right to be hired by employers in the US critically strips these workers from accessing many of the protections and rights afforded to them by US labor laws, substantially increasing their vulnerability to exploitation. Employers, driven by revenue, often look for mechanisms by which they can effectively cut production costs and increase their profits, especially during periods of economic uncertainty; importantly, one of these mechanisms rests on the reduction of labor costs, which can be achieved by hiring undocumented workers. As evidenced by the decision of Hoffman Plastics Compounds, Inc. v. National Labor Relations Board to not award undocumented workers back pay despite their unlawful termination, undocumented workers largely fail to be effectively protected by US labor laws, including the right to unionize without employer interference. This inhibits the ability of undocumented workers to organize, unionize, and collectively bargain without retaliation, enabling a possible means for employer exploitation. Furthermore, employers utilize the fear and threat of deportation to create an environment conducive to exploitation and coercion as they “can pay [workers] less than the legal requirements or [employ] them in unsafe conditions,” while simultaneously making undocumented workers reluctant to report these abuses for fear of deportation. [40] The absence of worker protections and threat of deportation, cemented through the passage of IRCA, enables heightened fatalities and injuries endured by immigrant workers. Specifically, “immigrant workers are more likely to experience workplace fatalities or workplace injuries than native-born workers, with estimates of approximately three hundred more fatalities and sixty-one thousand more injuries annually than their native-born counterparts.” [41]
Since 2003, unauthorized immigrants have made up approximately 5% of all US workers, constituting over 7.8 million workers in the US who are deprived of protection under US law. [42] With migrant encounters at the Southern border skyrocketing and an increasingly inundated asylum and detention system, the immigration system and the rights of the undocumented workforce in the US can no longer be put on the backburner. [43] It is imperative that policy changes are made to protect these workers and address one of the largest worker concerns facing the US today.
VI. Concluding Remarks
Justice Kennedy poignantly noted that, “we [must not] leave helpless the very persons who most need protection from exploitative employer practices.” [44] This sentiment has, unfortunately, failed to resonate with the United States’ perception and protection of the undocumented population. Prior to the passage of the Immigration and Reform Act of 1976, undocumented workers were legally afforded the right to be employed in the US and access to the concomitant worker protections, including the right to unionize without employer interference (Sure-Tan, Inc v. National Labor Relations Board, 1984). However, following the passage of IRCA, which effectively prohibited and criminalized the employment of unauthorized workers, undocumented workers’ ability to safeguard the enforcement of their employment rights under the NLRA has been significantly curtailed. This was recently evidenced in the 2002 Supreme Court case, Hoffman Plastics Compounds, Inc. v. National Labor Relations Board, which held that undocumented workers were not entitled access to certain remedial actions against unfair labor practices as they were not legally authorized to work or be in the United States.
The absence of sufficient U.S. labor law protections for undocumented workers facilitates their exploitation through the threat of deportation and the inability to unionize or report workplace abuses. As migrant encounters at the Southern Border continue to increase, hitting an all-time high at the end of 2023, [45] it is evident that stripping these workers of their rights does not effectively curtail their decision to migrate to the U.S.; rather, it exposes these workers to exploitation at the hands of unscrupulous employers. As a country built off the backs of immigrants and one that is experiencing an exponential increase of prospective immigrants to the U.S., [46] it is imperative that we acknowledge the ways in which our laws fail a growing part of our workforce and commit to preventing their exploitation through alternative means.
Endnotes
[1] Tyche Hendricks, "Fear of Deportation Keeps Some Workers from Reporting Labor Abuses. A New Biden Program Aims to Change That," KQED, last modified February 7, 2023, https://www.kqed.org/news/11940316/fear-of-deportation-keeps-some-workers-from-reporting-labor-abuses-a-newbiden-program-aims-to-change-that.
[2] Hendricks, "Fear of Deportation," KQED.
[3] Immigration and Nationality Act, 4 U.S.C. (1952).
[4] Ibid.
[5] "Major Developments in the History of U.S. Immigration," The University of Texas at Austin, https://www.laits.utexas.edu/jaime/cwp5/cig/text/extraindex.html.
[6] Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 104 S. Ct. 2803 (1984)
[7] Ibid.
[8] Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 104 S. Ct. 2803 (1984)
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 104 S. Ct. 2803 (1984)
[16] 29 U.S.C.S. § 152 (LexisNexis, Lexis Advance through Public Law 118-40, approved March 1, 2024)
[17] 467 U. S. ____ (1983) (O’Connor, J., concurring opinion)
[18] Ibid.
[19] De Canas v. Bica, 424 U.S. 351 (1976)
[20] 467 U. S. ____ (1983) (O’Connor, J., concurring opinion)
[21] "Immigration Reform and Control Act (IRCA)," Boston University Human Resources, https://www.bu.edu/hr/policies/federal-and-state-laws/immigration-reform-and-control-act-irca/.
[22] "1986: Immigration Reform and Control Act of 1986," Library of Congress, https://guides.loc.gov/latinx-civil-rights/irca.
[23] Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S. Ct. 1275 (2002); 8 U. S. C. § 1324a(a)(1)
[24] "Immigration Reform," Boston University Human Resources.
[25] 8 U.S.C.S. § 1324a (LexisNexis, Lexis Advance through Public Law 118-40, approved March 1, 2024)
[26] Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S. Ct. 1275 (2002)
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] 535 U. S. ____ (2002) (Rehnquist, J., concurring opinion)
[31] Ibid.
[32] Ibid.
[33] Ibid.
[34] 535 U. S. ____ (2002) (Breyer, J., dissenting opinion)
[35] Ibid.
[36] Agri Processor Co., Inc., v. National Labor Relations Board, No. 06-1329, slip op. at 6 (D.C. Cir. Jan. 4, 2008).
[37] 535 U. S. ____ (2002) (Breyer, J., dissenting opinion)
[38] Ibid.
[39] Ibid.
[40] Lee, J. J. (2018). Redefining the Legality of Undocumented Work. California Law Review, (5), 1617-1656.
[41] Ibid.
[42] Jeffrey S. Passel and Jens Manuel Krogstad, "What We Know about Unauthorized Immigrants Living in the U.S.," Pew Research Center, last modified November 16, 2023, https://www.pewresearch.org/short-reads/2023/11/16/what-we-know-about-unauthorized-immigrants-living-in-the-us/.
[43] "Migrant Encounters at the U.S.-Mexico Border Hit a Record High at the End of 2023," Pew Research Center, last modified February 15, 2024, https://www.pewresearch.org/short-reads/2024/02/15/migrant-encounters-at-the-us-mexico-border-hit-a-record-high-at-the-end-of-2023/.
[44] 535 U. S. ____ (2002) (Breyer, J., dissenting opinion)
[45] "Apprehensions and Expulsions Registered by the United States Border Patrol from the 1990 Fiscal Year to the 2022 Fiscal Year," chart, Statista, March 12, 2024, https://www.statista.com/statistics/329256/alien-apprehensions-registered-by-the-us-border-patrol/
[46] "Our Nation of Immigrants," The Brookings Institute, https://www.brookings.edu/collection/our-nation-of-immigrants/.