Place of the Undocumented Worker in the United States Legal System after Hoffman Plastic Compounds: An Assessment and Comparison with Argentina's Legal System, The


THE PLACE OF THE UNDOCUMENTED WORKER
IN THE UNITED STATES LEGAL SYSTEM AFTER

HOFFMAN PLASTIC COMPOUNDS: AN
ASSESSMENT AND COMPARISON

WITH ARGENTINA'S LEGAL SYSTEM

Maria Pab6n L6pez*

I. INTRODUCTION

The undocumented worker's place in the U.S. legal system has been
described as "deeply ambivalent."' A leading immigration scholar coined this
intriguing description more than fifteen years ago, shortly after the passage of
the statute that outlawed the hiring of undocumented workers in the United
States: the Immigration Reform and Control Act (IRCA). This deep
ambivalence reveals a pragmatic measure of tolerance for these workers, who
occupy a key place in the U.S. economy 3-particularly in the low skill, low

* Assistant Professor of Law and Co-Director, Latin American Law Program, Indiana
University School of Law-Indianapolis. J.D., University of Pennsylvania Law School; B.A.,
Princeton University. I thank Associate Dean Alfreda Robinson for entrusting me with the
organization of the "Immigration in Modem America" panel at the Second National People of
Color Legal Scholarship Conference, held in October 2004 at the George Washington
University School of Law. It was in this panel that I presented this article. An earlier version of
this article was presented at the Rivers of Law: The Confluence of Life, Work and Justice: Law
and Society Association Annual Meeting 2003. I thank my colleagues Robin Kundis Craig and
Karen Bravo for their comments on earlier drafts of this paper. I appreciate the work of Cynthia
Carrasco, Indiana University School of Law, Indianapolis, Class of 2006, who provided
excellent research assistance. I also appreciate the invaluable research support of Dragomir
Cosanici, Head of Reference, Indiana University School of Law, Indianapolis. Finally, I am
grateful for the assistance of Universidad Nacional de La Plata, Argentina Professors Rita
Gajate, Sergio Palacios and Juan Amestoy as well that of Christian Gallo, Indiana University
School of Law, Indianapolis, L.L. M. Class of 2005, who all gave of their time and energy to
help me locate Argentine law sources. A summer research grant from Indiana University School
of Law - Indianapolis funded the research for this article.

1. Linda Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented
Worker under United States Law, 1988 Wis. L. REv. 955, 1023 (1988).

2. See 8 U.S.C. § 1324a (1994) (making unlawful the employment of undocumented
workers). IRCA also contained a provision for sanctioning employers who hired undocumented
workers. Id.

3. Studies show that immigrant workers may add up to an estimated $10 billion to the
economy each year. See Overall U.S. Economy Gains from Immigration, But It's Costly to
Some States and Localities, NAT'L ACAD. PRESS (May 17, 1997) (citing findings of a U.S.
Commission on Immigration Reform study performed by the National Academy of Sciences, as
stated by Rand Corp. economist James R. Smith, Commission Chair) (on file with author). The
Urban Institute has estimated that undocumented workers have contributed $2.7 billion to Social
Security and another $168 million to unemployment insurance taxes in the country. See THE
VALUE OF UNDOCUMENTED WORKERS, AM. IMMIGRATION LAw FOUND. (April 2002) (on file with



IND. INT'L & COMP. L. REV.

wage labor force sector4-while at the same time underscoring their status as
outsiders in the polity, based on their undocumented status. This state of deep
ambivalence also reveals the coexistence of opposing attitudes or conflicting
thoughts toward the undocumented workers, who have a dual nature in U.S.
society, outsiders by nationality and lack of legal status and insiders because the
U.S. economy needs their work. Despite this deep ambivalence, the years
following the passage of IRCA saw a record growth in the numbers of
undocumented workers in the country, in response to the rising needs of the
U.S. workforce. 5 However, there has been no concomitant growth in IRCA-
authorized sanctions imposed upon employers for whom the undocumented

6workers labor. As such, the deep ambivalence toward the undocumented
worker has continued in the face of the lack of effective deterrents to the hiring
of undocumented workers.

In the last three years, the seminal U.S. Supreme Court's decision in
Hoffman Plastic Compounds, Inc. v. NLRB7 has rekindled the debate regarding
the status of undocumented workers in the United States. In Hoffman, the
Court denied an undocumented worker backpay, which the NLRB had awarded
as a remedy to an unfair labor practice, finding that the award contradicted the
policies of IRCA. 8 The Hoffman decision has had an indelible effect upon legal
norms in the United States regarding the rights of undocumented workers,

author), available at http://www.ailf.org/ipc/policy-reports_2002-value.asp. For a recent study
of the economic impact of undocumented workers in a particular locality, see CHIRAG MEHIA ET

AL., CHICAGO'S UNDOCUMENTED IMMIGRANTS: AN ANALYSIS OF WAGES, WORKING CONDITIONS

AND ECONOMIC CONTRIBUTIONS, UNIVERSITY OF ILLINOIS CHICAGO 34 (2002) (discussing
contributions of undocumented workers in the Chicago metropolitan area in the amount of 5.45
billion dollars annual spending, generating an additional 31908 jobs yearly to the local
economy), available at http://www.uic.edu/cuppa/uicued/Publications/RECENT/undocifull.pdf.

4. Undocumented workers are overrepresented in certain low skill, low wage labor force
sectors. For example, undocumented workers account for about ten percent of all restaurant
workers, and nearly twenty-five percent of all private household workers in the United States.
See B. LINDSAY LOWELL & RICHARD FRY, PEw HISPANIC CENTER, ESTIMATING THE DISTRIBUTION

OF UNDOCUMENTED WORKERS IN THE URBAN LABOR FORCE 4 (2002), available at
http://pewhispanic.org/files/reports/6.1.pdf (on file with author).

5. As of October 1992, the Immigration and Naturalization Service (INS) estimated the
number of undocumented population in the United States at 3.9 million. See Jeffrey Passel,
Undocumented Immigration to the United States: Numbers, Trends, and Characteristics, in
ILLEGAL IMMIGRATION IN AMERICA: A REFERENCE HANDBOOK 37 (David W. Haynes & Karen E.
Roseumblum, eds. 1999).

6. In fact, the available data shows that for the years 2003 and 2004, only fifteen
employers nationwide were fined for hiring undocumented workers. See DEPARTMENT OF

HOMELAND SECURITY, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, EMPLOYER

SANCTIONS FINAL ORDER, available at http://uscis.gov/graphics/aboutus/foia/ereadrm/
esdefin4.htm (last visited March 21, 2005). The amount of the fines imposed during these years
has ranged from a low of $2200 to a high of $59,356.60. Id. In another telling statistic,
nationwide media attention has focused on the fact that in 2002, the former Immigration and
Naturalization Service issued orders levying fines on only thirteen employers for hiring
undocumented workers. Donald L. Bartlett & James B. Steele, Who Left the Door Open?, TIME,
Sept.20, 2004, at 51.

7. 535 U.S. 137 (2002).
8. Id. at 149.

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UNDOCUMENTED WORKER AFTER HOFFMAN

particularly at a time when the nation is coming to terms with the sheer number
of undocumented workers9 within its borders.

The undocumented worker faces a conflict between labor law and
immigration law: whether the undocumented worker's unauthorized
immigration status should be given priority over the illegality of the employer
who violates labor law by hiring undocumented workers. Thus, one must ask
whether the place of the undocumented worker in the U.S. legal system is still
deeply ambivalent after Hoffman, or has that ambivalent state deteriorated as a
result of the decision.

This article analyzes the place of the undocumented worker in the U.S.
legal system after Hoffiman and argues that the attitude of the polity has moved
beyond deep ambivalence to a hostile inconsistency, as evidenced by the
conflicting treatment of the claims of undocumented workers by the lower
courts. This hostile inconsistency becomes even more obvious when compared
to the treatment of undocumented workers in Argentina, another country with a
sizable immigrant population. In contrast to the almost insurmountable barriers
to legal immigration in the U.S. for the majority of non-U.S. citizen workers,
Argentina's legal system allows such workers easier access to Argentina's
workforce. Furthermore, the country's legal regime treats undocumented
workers in a markedly less hostile and inconsistent manner than does the U.S.
legal system. Whereas sanctions against companies for employing
undocumented workers are a part of the U.S. legal system, it is the case that
they are not the primary focus of enforcement actions. In Argentina, the legal
system does the opposite, focusing instead on the employer as a main locus of
the legal sanction.

Part II of this paper analyzes the Hoffman opinion and explores how it
has been interpreted in subsequent case law to illuminate the current norms that
affect the lives of undocumented workers in the United States. Part Il
examines leading federal and state labor and employment laws and analyzes the
predominant statutory regimes affecting undocumented workers. Part IV

9. Estimates show that there are approximately six million undocumented workers in the
United States economy, representing about five percent of all United States workers. See
JEFFREY S. PASSEL, RANDY CAPPS & MICHAEL E. Fix, URBAN INSTITUTE IMMIGRATION STUDIES
PROGRAM FACT SHEET, UNDOCUMENTED IMMIGRANTS: FACTS AND FIGURES (2004) (on file with
author). Other estimates have shown a larger figure of undocumented workers, estimating the
number at 7.8 million. See LOWELL & FRY, supra note 4. The latest estimates of the total
undocumented population in the United States are available from the Pew Hispanic Center and
show that there are 10.3 million undocumented residents in the country, with undocumented
Mexicans accounting for 57% of the undocumented population. See JEFFREY S. PASSEL, PEW
HISPANIC CENTER, ESTIMATES OF THE SIZE AND CHARACTERISTICS OF THE UNDOCUMENTED
POPULATION 1 (2005), available at http://pewhispanic.org/files/reports/44.pdf (on file with
author). The number of undocumented workers in the United States is understandably, hard to
ascertain, as is, in general, subject of illegal immigration, which is "fraught with misinformation,
and lack of information, complexity and paradox." David W. Haines & Karen E. Rosenblum,
Introduction: Problematic Labels, Volatile Issues, in ILLEGAL IMMIGRATION IN AMERICA, supra
note 5 at 1.

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IND. INT'L & COMP. L. REv.

analyzes the current status and treatment of undocumented workers in
Argentina, including the legal norms of Mercado Comtin del Sur
(MERCOSUR),'° South America's main regional economic integration regime.
Part IV also provides a comparative analysis of the labor rights of

undocumented workers in the United States and those of their counterparts in
Argentina. Finally, this paper will conclude in Part V by canvassing proposed
solutions to the hostile ambivalence towards undocumented workers in the U.S.
legal system. These solutions will be assessed in an effort to better address the
existence of undocumented workers, who are in this country to stay because of
the economic situation and the cheap labor they provide."

HI. HOFFMAN PLASTIC COMPOUNDS, INC. V. NLRB AND ITS AFTERMATH

A. Hoffman Plastic Compounds, Inc. v. NLRB - The Case

The facts that give rise to Hoffman are as follows. Jos6 Castro and other
employees of the Hoffman Plastic chemical compound production plant in Los
Angeles took part in a campaign distributing authorization cards at their place
of employment as part of a unionizing effort for the United Rubber, Cork,
Linoleum, and Plastic Workers of America, an AFL-CIO affiliate.' 2 A month
after this activity began, the company terminated the persons involved in the
union organizing efforts, including Mr. Castro.' 3 Consequently, Mr. Castro and
the other employees filed a complaint with the National Labor Relations Board
(NLRB). Finding in favor of Mr. Castro and the other employees, the NLRB
ordered that the company (1) cease and desist from further violations, (2) offer
reinstatement and backpay to the employees; and (3) post a notice in the
workplace regarding the order. 14

During his testimony at an administrative compliance hearing held to
determine the amount of backpay owed, Mr. Castro revealed information about
his unauthorized entry into the United States, lack of employment
authorization, and the use of fraudulent documents to obtain employment.' 5

Taking into account this testimony, the Administrative Law Judge (AU) denied

10. MERCOSUR was created by the Treaty of Asuncion Establishing a Common Market
among Argentina, Brazil, Paraguay, Uruguay. See Argentina-Brazil-Paraguay-Uruguay: Treaty
Establishing a Common Market, Mar. 26, 1991, 30 I.L.M. 1041 (entered into force Dec. 31,
1994).

11. See Kevin Johnson, An Essay on Immigration, Citizenship, and U.S./Mexico
Relations: The Tale of Two Treaties, 5 S.w. J. L. & TRADE AM. 121, 141 (1998) (noting that
business interests in the United States "treasure the cheap labor provided by the Mexican
people"); see generally Christopher David Ruiz Cameron, The Labyrinth of Solidarity: Why the
Future of the American Labor Movement Depends on Latino Workers, 53 U. MIAMI L. REv.
1089, 1098 (1999) (discussing the essential nature of the Latino worker to the U.S. economy).

12. Hoffman Plastic Compounds, Inc., 535 U.S. at 140.
13. Id.
14. Id.
15. Id. at 141.

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UNDOCUMENTED WORKER AFTER HOFFMAN

any backpay to Mr. Castro. Mr. Castro then appealed, and the NLRB reversed
the ALJ's decision, ordering backpay for a period of three-and-a-half years,
which it calculated from the day of discharge to the date that the company
learned of Mr. Castro's undocumented status.' 6 The company appealed to the
U.S. Supreme Court after the Court of Appeals for the District of Columbia
Circuit had enforced the NLRB's backpay order. 17

The Supreme Court granted certiorari in the case and reversed the D.C.
Circuit. In a five to four decision, the Court held that Congress's federal
immigration policy, as expressed in IRCA, prohibited the NLRB remedy of
backpay for an undocumented worker who had never had legal authorization to
obtain employment in the United States. 18 The Court's decision resolved a
circuit split: the Second and Ninth Circuit Courts of Appeal had allowed
backpay awards to undocumented workers under the National Labor Relations
Act (NLRA), whereas the Seventh Circuit Court of Appeals held exactly the
opposite, denying backpay to the undocumented worker. 19 The Court began its
analysis by reviewing its pre-IRCA precedent, as set forth in Sure-Tan, Inc. v.
NLRB. 20 In Sure-Tan, the Court decided that an employer had engaged in an
unfair labor practice by reporting to the Immigration and Naturalization Service
(INS) certain undocumented workers in its workforce who had participated in
union activities.2'

The Court based its holding on NLRA precedent holding that an
employer constructively discharges an employee when, with the purpose of
discouraging union activity, the company purposefully creates working
conditions so intolerable that the employee is left with no choice but to resign.22

With regard to a remedy for the unfair labor practice, the Court conditioned
backpay for the workers who had already been deported by requiring their legal
reentry into the country and that they be legally entitled to be present and
employed in the United States.2 3 In fashioning this remedy, the Court in Sure-
Tan balanced the policy regarding protection against unfair labor practices of
the NLRA against the policy of the Immigration and Naturalization Act (INA)
aimed at deterring undocumented immigration. Foreshadowing Hoffman, the
Supreme Court in Sure-Tan afforded a limited remedy to undocumented
workers by having the NLRA policy yield to the INA policy.

The Hoffman Court then turned its analysis to the IRCA's comprehensive
scheme prohibiting the employment of undocumented workers and the penalties

16. Id. at 142. The amount of backpay was calculated at $66, 951. Id.
17. Hoffman Plastic Compounds, Inc. v. NLRB, 237 F.3d 639 (D.C. Cir. 2001).
18. Hoffman Plastic Compounds, Inc., 535 U.S. at 149.
19. Id. at 142 n.2. The NLRA is codified at 29 U.S.C. § 151 et. seq. (2000).
20. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902-3 (1984).
21. Id. at 894.
22. Id.
23. Id. at 902-3.
24. Id. at 912-3.

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IND. INT'L & COMP. L. REv.

to both employers and employees for violations of the scheme.25 The Court
found that Congress could not have meant for the NLRB to award backpay to
an undocumented worker, who would otherwise be criminally liable for
presenting false documents to obtain employment and who could not mitigate
damages. by obtaining other employment.26 The Court then resolved the
controversy over which policy prevails when labor policy and immigration
policy are at odds in the area of backpay remedies: immigration policy as
expressed in the IRCA's prohibition against the hiring of undocumented
workers carried the day. Continuing the trend started in Sure-Tan, the Court
chose to place labor policy over immigration policy, even in the face of one
illegality under immigration law, committed by the undocumented worker in
obtaining unauthorized employment as compared to the double illegality of the
employer in (1) the hiring of the undocumented worker and (2) the violation of
labor law.

However, as clearly stated in the Hoffman opinion, the other NLRA-
imposed remedies, such as cease-and-desist orders and posting a notice to
employees of their rights, with contempt enforcement, continue to apply to

27undocumented workers. The Court also distinguished its Hoffman opinion
from its own precedent regarding the awarding of backpay to workers who had
engaged in criminal acts, by noting that it has never deferred to the NLRB's
remedial preferences when they "potentially trench upon federal statutes and
policies unrelated to the NLRA.' '28 Furthermore, the Court rejected as a
"slender reed ' 29 a House committee report, which the dissent cited and which
stated that the IRCA "does not 'undermine or diminish in any way labor
protections in existing law, or ... limit the powers of federal or state labor
relation boards... to remedy unfair practices committed against undocumented
employees."' 30 Finally, the Court indicated that if relief is to be had, then it
must be "addressed by Congressional action," not the courts. 31

The dissent authored by Justice Breyer and joined by Justices Souter,
Stevens, and Ginsburg first reviewed how all of the relevant agencies, including
the Department of Justice, which was then in charge of overseeing INS's
activities, had informed the Court that an award of backpay to an
undocumented worker would not affect immigration policy. 32 Then the
dissenters warned that eliminating backpay as a deterrent in the NLRB's
"remedial arsenal" left it with fewer "weapons" and only "future-oriented"

remedies such as cease-and-desist orders.33 In the dissenters' view, this action

25. Hoffman Plastic Compounds, Inc., 535 U.S. at 148.

26. Id. at 149, 151.
27. Id. at 152.
28. Id. at 144.
29. Id. at 150 n.4.
30. Id. at 157 (Breyer, J., dissenting) (citing H.R. No. 99-682 pt. 1 at 58 (1986)).
31. Id at 152 (citing Sure-Tan, Inc, 467 U.S. at 904).

32. Id. at 153 (Breyer, J., dissenting).
33. Id.

[Vol. 15.2



UNDOCUMENTED WORKER AFTER HOFFMAN

produced a counter effect to NLRA's policy, allowing employers to violate
labor laws "at least once with impunity., 34

The dissent further stressed the effect of the majority opinion with respect
to immigration policy, arguing that the unwarranted removal of a "critically
important remedial power" from the NLRB gave employers a greater incentive
to employ undocumented workers. 35 Upon considering how the majority
misapplied its own precedent, such as in Sure-Tan, the dissent concluded by
stating that the NLRB's conclusion to award the backpay was reasonable, and
the majority should have respected it.36 Furthermore, Justice Breyer asserted
that the majority should not have substituted its own independent view of the
matter over that of the NLRB.37 In the three years following Hoffman, much
litigation has ensued with regard to its applicability to various other federal and
state labor and employment law.

B. Cases in the Three Years Following Hoffman: Mixed Results

1. Federal cases

Following Hoffman, employers have argued that a myriad of federal laws
do not apply to undocumented workers and that such workers are not entitled to
the various comprehensive workforce protections afforded by U.S. law to its
citizen or lawfully admitted workers.38 These arguments have met with mixed
success. For example, in Zeng Liu v. Donna Karan International Inc.,3 9 the
employer, fashion designer Donna Karan's company, sought to discover
plaintiff employees' immigration status in an unpaid wages Fair Labor
Standards Act (FLSA) case. Karan argued that under Hoffman, if
undocumented, the plaintiffs would be unable to collect the unpaid wages.4 °

The court disagreed and did not allow discovery, finding that the plaintiffs'
immigration status was not relevant to its decision regarding unpaid wages,
because Hoffman only concerned backpay as a remedy for a violation of the
NLRA for work not performed,41 rather than backpay for work performed in the
unpaid wages situation at hand.

34. Id.
35. Id. at 155.
36. Id. at 160.
37. Id. at 161.
38. See, e.g., Martinez v. Mecca Farms, Inc., 213 F.R.D. 601 (S.D. Fla. 2002) (employer

opposed class certification in wage and damages claim, stating that following Hoffnan,the
Migrant and Seasonal Agricultural Worker Protection Act did not apply to undocumented
workers); Flores v. Nissen, 213 F. Supp. 2d 871, 823 n.4 (N.D. Ill. 2002) (Defendant employee
argued that Hoffman should bar plaintiff, undocumented fellow employee, from recovering
backpay as part of damages suffered in car accident).

39. Zeng Liu v. Donna Karan Int'l Inc., 207 F. Supp. 2d 191,192 (S.D.N.Y. 2002). The
FLSA is codified at 29 U.S.C. § 201 et. seq. (2000).

40. Id.
41. Id. There are several other reported cases in which lower courts have denied

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IND. INT'L & COMP. L. REv.

In another FLSA case, Singh v. Jutla,42 the court denied an employer's
motion to dismiss wherein the employer argued that the court read Hoffman
broadly to prohibit undocumented workers from obtaining labor law remedies
other than backpay. In this case, the employer had recruited the employee
knowing of his undocumented status, never paid the employee for work
performed for almost three years, and then, when the employee filed his FLSA
claim for the unpaid wages, called the INS, resulting in the employee's
detention.43 In fact, INS had detained Mr. Singh for fourteen months at the
time of the writing of the opinion.44 The District Court for the Northern District
of California refused to extend Hoffman to bar the remedies Mr. Singh sought
for unpaid wages.45 The court noted that Hoffman did not preclude
undocumented workers from seeking any form of relief.46 The court reasoned
that, unlike in Hoffman, Mr. Singh sought to recover unpaid wages for work
already performed, and as such, the remedies sought were not barred to him.41

The opinion did not reach the merits of Mr. Singh's case, that is, whether as an
undocumented worker he would be able to recover damages and obtain
injunctive relief under the FLSA against his employer for retaliating against
him for filing an unpaid wage claim.

Yet another Hoffman discovery challenge took place in De La Rosa v.
Northern Harvest Furniture," a Title VI149 action where the employer sought
production of the employee's documents regarding his work authorization both
at his time of employment and at the time of the litigation. 0 In that case, the
District Court for the Central District of Illinois found that "[t]he only period
for which immigration status might potentially be relevant" to the question of
backpay under Title VII was the time after the employee was terminated and
when the employer offered reinstatement.51 Because this time period was not
one for which the defendant had requested employment authorization
documents, the court denied the motion to compel discovery. 2 The importance
of the timing identified by the court in De La Rosa lies in the fact that a worker

employer's requests for discovery into employee's immigration status when the request involves
unpaid wages under the FLSA. See Flores v. Albertsons, CV 01-00515 AHM, 2002 U.S. Dist
LEXIS 6171 (C.D. Cal. Apr. 9,2002); Flores v. Amigon, 233 F. Supp. 2d 462, 464 (E.D.N.Y.
2002); Cortez v. Medina's Landscaping, No. 00 C 6320, 2002 U.S. Dist. LEXIS 18831, at *2
(N.D. Ill. Sep. 30, 2002). In another case, Rodriguez v. The Texan, Inc., No. 01 C 1478, 2002
U.S. Dist. LEXIS 17379, at *7 (N.D. I11. Sep. 13, 2002), the court granted a plaintiffs motion in
limine to exclude any reference to his immigration status in an unpaid wages case under the
FLSA.

42. Singh v. Jutla, 214 F. Supp. 2d. 1056, 1062 (N.D. Cal. 2002).
43. Id. at 1057.
44. Id.
45. Id. at 1060.
46. Id. at 1061.
47. Id.
48. De La Rosa v. N. Harvest Furniture, 210 F.R.D. 237 (C.D. Ill. 2002).
49. Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e (2004).
50. De La Rosa, 210 F.R.D. at 238-9.
51. Id. at 239.
52. Id.

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UNDOCUMENTED WORKER AFTER HOFFMAN

who is undocumented at the time of employment is not automatically
disqualified from bringing an antidiscrimination claim under Title VII. Thus,
there is no chilling effect to undocumented workers which would prevent them
from bringing antidiscrimination actions under Title VII.

Notwithstanding its ruling, the De La Rosa court did note that in a Title
VII case backpay is presumptively appropriate and "may only be denied for
reasons which 'if applied generally, would not frustrate the central statutory
purposes of eradicating discrimination . . . and making persons whole.' 53

Furthermore, by contrasting its authority with that of the NLRB, the court
hinted at what would happen if immigration law conflicted with anti-
discrimination law, stating that it could not "conclude at this time that Hoffman
is dispositive of the issues raised. .. . Thus, the court also hinted at its
possible resolution of the case-assuming discovery into the employees'
employment authorization at the appropriate time period for Title VII backpay
had taken place-a much different outcome than what happened to Mr. Castro
in Hoffman. Mr. De La Rosa's undocumented status quite possibly would not
have precluded his obtaining backpay as a remedy under the anti-discrimination
statute.

The only federal appellate case to have considered Title VII in regard to
undocumented workers following Hoffman has followed this view. The Ninth
Circuit, in Rivera v. NIBCO, Inc.,5 has stated in dicta that Hoffman is not
broadly applicable and that it doubts it is germane to the Title VII context. 56

The Ninth Circuit's view is based on the distinctions between the limited
private enforcement allowed under the NLRA and the broad mandate under
Title VII for individual plaintiffs to enforce the law by acting as private
attorneys general.57 Thus, according to the Ninth Circuit, and contrary to the
arguments of some asserting that the undocumented have no rights in this
country,58 Hoffman's holding was limited to the NLRA.

There are other instances where the employee's legal action has survived
a Hoffman challenge, but just barely. In Lrpez v. Superflex, Ltd.,59 the

53. Id.
54. Id.
55. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1067 (9th Cir. 2004), reh 'g denied, 384 F.3d

822 (9th Cir. 2004), cert. denied, 73 U.S.L.W. 3415, 2005 WL 517010 (2005). The Supreme
Court's recent denial of certiorari can be seen as reflecting a lack of intense dissatisfaction of the
majority of the Justices with the decision below. See Peter Linzer, The Meaning of Certiorari
Denials, 79 COLUM. L. REv. 1227, 1229 (1979).

56. Rivera, 364 F.3d at 1067.
57. Id.
58. See Christine Dana Smith, Give Us Your Tired, Your Poor: Hoffman and the Future

of Immigrants' Workplace Rights, 72 U. CN. L. REV. 363, 374 (2003) (narrating account of
New York employer's attorney to an advocacy group stating: "I am sure you are aware of the
ruling by the Supreme Court of the United States that illegal immigrants do not have the same
rights as U.S. citizens.").

59. L6pez v. Superflex, Ltd., No. 01 Civ. 10010 (NRB), 2002 U.S. Dist. LEXIS 15538
(S.D.N.Y. Aug. 21, 2002).

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IND. INT'L & COMP. L. REv.

employer sought to dismiss an Americans with Disabilities Act (ADA) claim6°

for punitive and compensatory damages, arguing that under Hoffman the
employee needed to plead his lawful presence in the United States in his
complaint.6' The District Court for the Southern District of New York denied
the motion, finding no requirement that the employee plead that he was legally
working in the United States, because the Supreme Court has rejected such
heightened pleading unless mandated by the Federal Rules of Civil Procedure.62

The court in Lopez did not rule on the issue of whether Hoffman applied
to punitive and compensatory damages under the ADA.63 The court, however,
did clearly emphasize that:

If Hoffman Plastics [sic] does deny undocumented workers the
relief sought by plaintiff, then he would lack standing....
However, if plaintiff were to admit to being in the United
States illegally or were to refuse to answer questions regarding
his [immigration] status on the grounds that it is not relevant,

then the issue of his standing would properly be before us, and
we would address the issue of whether Hoffman Plastics [sic]

applies to ADA claims for compensatory and punitive
damages brought by undocumented aliens. 64

In other words, if the court had been able to decide this issue, the
employee would have suffered the same fate as Mr. Castro did in Hoffman,
where his undocumented status negated recovery from his employer even
though his employer violated the law. Similarly, because of his undocumented
status, Mr. Lopez would not have been able to recover from his employer for a
violation of the ADA. Furthermore, if Mr. L6pez had not withdrawn his
request for backpay, the court very possibly would also have precluded that
remedy. The evidence for this assertion is the Lopez court's careful note of the
Hoffman Court's language that "awarding backpay not only trivializes the

,,65
immigration laws, it also condones and encourages future violations.

2. State Supreme Court Cases: Worker's Compensation

Following the Supreme Court's decision in Hoffman Plastic Compounds,
the highest courts in three states (Pennsylvania, Minnesota and Michigan) have
considered the applicability of their worker's compensation statutory schemes

60. Mr. L6pez, an employee with kidney disease, had been laid off without determining
whether he could perform his old job or another job at the same employer. Id. at *2.

61. Id.
62. Id. at *7.
63. Id. at *3.
64. Id. at *7-8.
65. Id. at *6.

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UNDOCUMENTED WORKER AFTER HOFFMAN

to undocumented workers.66 These three cases have, again, evidenced a mixed
result, where the tensions Hoffman raised regarding the employment of
undocumented workers and their ability to recover for workplace injuries,67 are
clearly palpable in the strong dissents of each of the three opinions.

The Supreme Court of Pennsylvania decided a case where an employer,
Reinforced Earth Company, argued that a worker's lack of work authorization
vitiated his entitlement to compensation benefits for injuries suffered at his
place of employment. 68 The court rejected the employer's argument because it
was prohibited from making any extra-statutory declaration of public policy or
judicial legislation to exclude undocumented workers from the reach of the
worker's compensation system.69 The court also held that an employer is not
required to show job availability when seeking to suspend worker's
compensation benefits granted to an employee who is an unauthorized alien.7°

Thus, in this case the public policy behind the worker's compensation system-
a bilateral compact that assures the redress of worker's injuries while the
worker gives up the right to sue his employer-won the day over the
immigration law policy against the hiring of undocumented workers that the
IRCA contains.

Although the opinion of the Pennsylvania Supreme Court in Reinforced
Earth did not directly address, or even cite, Hoffman, the lone dissent of Justice
Newman did use Hoffman to assert that the public policy of redressing the
work-related injuries of employees, as enunciated in Pennsylvania's Worker's
Compensation statutes should yield to the IRCA' s congressional policy against
the hiring of unauthorized workers.7' Justice Newman would have had the
majority in Reinforced Earth faithfully follow Hoffman, noting that the
Supreme Court's decision "illustrates that where two legislative schemes apply
to the same situation, one may have to yield to the higher policy interests served
by the other., 72 In other words, in Justice Newman's view, the Pennsylvania
Worker's Compensation policy of redressing the injuries of undocumented
workers is of lower value to society than the IRCA's policy of not hiring

66. See Reinforced Earth Co. v. Worker's Comp. Appeal Bd. (Astudillo), 810 A.2d 99,
102 (Pa. 2002); Correa v. Waymouth Farms, Inc., 664 N.W.2d 324 (Minn. 2003); Sdinchez v.
Eagle Alloy, Inc., 671 N.W.2d 874 (Mich. 2003) vacated by 684 N.W.2d 342 (Mich. 2004).

67. It should be noted that foreign born workers most often work in dangerous
occupations such as construction and manufacturing, and in fact have higher rates ofjob injuries
and fatalities than native born workers. See Rebecca Smith, Amy Sugimori & Luna Yasui, Low
Pay: High Risk: State Models for Advancing Immigrant Workers Rights, 28 N.Y.U. REV. L. &
SOC. CHANGE 597, 599 (2004) (citing a Department of Health and Human Services study
showing an increase in fatal injuries to foreign born workers and Latinos).

68. Reinforced Earth Co., 810 A.2d at 102.
69. Id. at 105.
70. Id. at 107.
71. Id. at 112 (Newman, J., dissenting).
72. Id. at 110 (Newman, J., dissenting).

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IND. INT'L & CoMP. L. REv.

undocumented workers, and thus, it should yield to that higher immigration
policy.

73

According to Justice Newman, there should be no compensation for an
injured worker who suffered an accident that rendered him unconscious, left
him with a concussion, head injury, and acute cervical and lumbar-sacral strain
and sprain,74 because of his act of obtaining employment with fraudulent
documentation. This of course is the extra-statutory declaration of public
policy or judicial legislation in which the Reinforced Earth majority clearly
refused to engage, emphasizing that the Pennsylvania General Assembly had
not statutorily excluded undocumented workers from the purview of its
Worker's Compensation Act. 75

The Supreme Court of Minnesota similarly considered the appeal of an
employer whose employee, an undocumented worker, received on the job
injuries and was collecting temporary total disability payments.76 The employer
argued that the worker would not be able to conduct a diligent job search, as
required by the statute for continued benefits, because his undocumented status
would preclude him from obtaining employment without violating IRCA.77

The Minnesota Supreme Court did not agree, relying on the Minnesota
worker's compensation statutory language as well on the language of IRCA,
which expressly failed to preclude payment of temporary total disability

73. The employer had argued at the Pennsylvania Commonwealth Court, which was the
court below, that the IRCA preempted its state Worker's Compensation law, so that the
undocumented worker could not be considered an "employee" to receive benefits under the law.
Id. at 103, n.5. The Commonwealth Court had rejected the argument, finding no preemption.
Id. The Supreme Court of Minnesota has also rejected the argument that IRCA preempts its
state Worker's Compensation statute, finding that IRCA was not aimed at impairing state labor
law protections. Correa v. Waymouth Farms, Inc., 664 N.W.2d 324, 329 (Minn. 2003). Two
courts of appeal have similarly rejected the argument that IRCA preempts state Worker's
Compensation remedies with regard to undocumented workers. The Georgia Court of Appeals
has consistently expressed its view that there is no conflict between IRCA and its state Worker's
Compensation statute, so that an employer could not deny benefits under the statute to an
undocumented worker. See Wet Walls, Inc.v. Ledezma, 598 S.E.2d 60,63 (Ga. Ct. App. 2004);
see also, Continental PET Technologies v. Palacias, 604 S.E.2d 627, 334 (Ga. Ct. App. 2004)
(en banc). Earth First Grading v. Gutierrez, 606 S.E.2d 332, 334 (Ga. Ct. App. 2004).
Similarly, because IRCA does not contain express preemption language, a Florida appellate
court found that an undocumented worker would not be precluded from obtaining Worker's
Compensation in that state. See Safeharbor Employer Serv. I. Inc. v. Cinto Veldzquez, 860
So.2d 894, 896 (Fla. Ct. App. 2003). The preemption argument usually made and rejected with
regard to IRCA in such cases is based on the Congress's authority over immigration law matters.
See U.S. CONST. art. VI, cl.2. Congress has the power to "establish an uniform Rule of
Naturalization." See U.S. CONST. art. I, § 8, cl. 4. The Supreme Court has found that the federal
government's inherent sovereign power allows it to further regulate in the field of immigration.
See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).

74. Reinforced Earth Co., 810 A.2d at 101.
75. Id. at 105.
76. Correa v. Waymouth Farms, Inc., 664 N.W.2d 324 (Minn. 2003).
77. Id. at 328.

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UNDOCUMENTED WORKER AFTER HOFFMAN

payments.78 The Court explicitly declined to address the public policy
questions the employer raised, stating that "if policy considerations favor a
different result, that determination is more properly left to the legislature to
make.

79

However, there was a strong dissent to the opinion from Justice Gilbert,
who stated that the majority ignored the IRCA, an "important federal
immigration requirement," by "creating a legal fiction of a diligent job search
that is contrary to federal law."8° Justice Gilbert used the Hoffman language,
stating that the majority's holding "trivializes" immigration law, because the
undocumented worker would have to conduct any job search through fraud and
deception as to immigration status.81

Finally, in late 2003, the Supreme Court of Michigan granted the
application for leave to appeal of an undocumented worker to whom the lower
court had denied worker's compensation benefits.82 The Court even invited
amicus curiae briefs.83 Although the Court of Appeals of Michigan held that
the state's worker's compensation statute applied to undocumented workers, it
found that the undocumented worker's criminal act of obtaining employment
fraudulently mandated the denial of the worker's compensation benefits. 84

After consideration of the case for more than six months, the Michigan
Supreme Court asserted that it was no longer persuaded that it should review
the questions presented.85 The court's action was criticized in dissent by two
justices. Justice Kelly disagreed, finding jurisprudential and policy significance
of the case. 86 Justice Markman noted that the decision of the court of appeals
was a compromise that left many questions unanswered, and he highlighted the
case's importance not only for the undocumented, "but equally for the rule of
law and the meaning of citizenship. 87

Thus, in the three years following Hoffiman much litigation has ensued,88

with employers arguing for an expansion of the decision's reach at both the
state and federal level. There have been mixed results throughout, and

78. Id. at 331.
79. Id.
80. Id. (Gilbert, J., dissenting).
81. Id. at 332 (Gilbert, J., dissenting).
82. Sanchez v. Eagle Alloy, Inc., 671 N.W.2d 874 (Mich. 2003) vacated by 684 N.W.2d

342 (Mich. 2004).
83. Id.
84. S,nchez v. Eagle Alloy, Inc., 658 N.W.2d 510, 515 (Mich. Ct. App. 2003).
85. Sdnchez v. Eagle Alloy, Inc., 684 N.W.2d 342 (Mich. 2004). The effect of this order

is that the published opinion of the Court of Appeals was left as binding precedent. Id.
(Weaver, J., concurring).

86. Id. (Kelly, J., dissenting). Justice Kelly stated that "[t]he parties, the people of
Michigan, and those who come into the state to work have a pressing interest in having these
issues resolved by the state's highest court." Id.

87. Id. at 345 (Markman, J., dissenting). In fact, Justice Markman noted that "no other
case has engendered more passionate debate ...... Id. at 343 (Markman, J., dissenting).

88. The Hoffman decision has been cited in 62 subsequent court decisions. See
SHEPARD'S UNITED STATES CITATIONS (Mar. 29, 2005).

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IND. INT'L & COMP. L. REv.

sometimes employers have not fared particularly well in having courts adopt a
wide view that would leave undocumented workers with little or no labor law
protections in the workplace.

Nevertheless, lower federal courts have resolved several of the cases on
pretrial motions and have not addressed their merits, so that the final resolution
of many of these Hoffman challenges remains to be seen. Furthermore,
considering the time and resources spent by immigrants and their advocates
defending these kinds of lawsuits, the undocumented workers' lives and
working conditions are no better post-Hoffman, because the organizing and
advocacy of labor and immigrants' rights groups has shifted to a defensive,
rather than proactive, role to further the rights of undocumented workers in the
United States.

111. CURRENT STATUTORY REGIMES AND CASE LAW REGARDING
UNDOCUMENTED WORKERS

Undocumented workers are not universally protected in the workplace
under U. S. law. Judicial, legislative, and administrative bodies have placed
limitations upon the protection of the undocumented worker in the workplace in
various contexts, as these entities struggle to reconcile labor law and policy
with immigration law and policy. This phenomenon is evidence of the dual
nature of the undocumented worker as both an outsider and insider to the U.S.
community.89

A. NLRA

The NLRA statutory definition of "employee" does not exclude
undocumented workers. Therefore, they fall under the purview of the NLRA.9°

In particular, undocumented workers are able to vote in union elections under
the NLRA without regard to their immigration status.91 The NLRA also
protects undocumented workers against unfairlabor practices.92 An employer
commits an unfair labor practice by reporting undocumented workers to the
INS (now Department of Homeland Security or DHS) in retaliation for
participating in union activities.93 Prior to Hoffman, the undocumented worker
had been allowed backpay, albeit in a restricted manner, as decided by the
Supreme Court in the Sure-Tan case.94

89. Bosniak, supra note 1, at 956 (discussing the dual identity of undocumented workers
in the United States after IRCA, as "they are both outsiders and members, regulated objects of
immigration control and subjects of membership in limited but important respects.").

90. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891 (1984).
91. See Chicago Future, Inc. v. NLRB, No. 13-CA-40392, 2003 LEXIS NLRB 93, n.4

(N.L.R.B. Mar. 12, 2003).
92. See NLRB General Counsel Memorandum No. GC 02-06, Procedures and Remedies

for Discriminatees Who May Be Undocumented Aliens after Hoffman Plastic Compounds, Inc.
(July 19, 2002), 2002 WL1730518 [hereinafter NLRB General Counsel Memorandum].

93. Sure-Tan Inc., 467 U.S. at 894.
94. Id. at 902-3. See also supra notes 20-24 and accompanying text.

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UNDOCUMENTED WORKER AFTER HOFFMAN

After Hoffman, the NLRB has stated that it will object if employers
"attempt to elicit evidence concerning an employee's asserted undocumented
status in order to escape unfair labor practice liability., 95 Furthermore, with
regard to undocumented workers, the NLRB has instructed its regional offices
that:

Regions have no obligation to investigate an employee's
immigration status unless a respondent affirmatively
establishes the existence of a substantial immigration issue.
Regions should begin their analysis with the presumption that
employees and employers alike have conformed to the law.
The law-IRCA-protects employees against harassment by
an employer which seeks to reverify their immigration status
without cause. A substantial immigration issue is lodged
when an employer establishes that it knows or has reason to
know that a discriminatee is undocumented. Once an
employer makes this showing, Regions should investigate the
claim by asking the Union, the charging party and/or the
discriminatee to respond to the employer's evidence. Again, a
mere assertion is not a sufficient basis to trigger such an

96investigation.

Hoffman has modified the NLRB remedial scheme by removing backpay
as a remedy for an unfair labor practice for undocumented workers. 97 This
modification has resulted in changes to NLRB policy regarding the remedies
the Board will seek for undocumented workers, but not in the manner in which
NLRB conducts its investigations of unfair labor practices. 98

A recent NLRB case extends this result. In re Tuv Taam Corporation is
a NLRB unfair labor practice case in which the Board refused to consider the
immigration status of the discriminated employees until after the determination
of the employer's liability.99 The Board's rationale was that the immigration
status of the discriminated employees had no bearing on the issue of whether
the employer has engaged in an unfair labor practice. Thus, the NLRB has
limited Hoffman to its most restrictive holding. Bearing in mind that the
majority in Hoffman was criticized by the dissent for failing to pay the requisite

95. NLRB General Counsel Memorandum, supra note 92.
96. Id.
97. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 150 (2002).
98. NLRB General Counsel Memorandum, supra note 92.
99. In re Tuv Taam Corp., 340 NLRB No. 86,2003 WL 22295361, *6 (N.L.R.B. Sep. 30,

2003). In fact, the Board ordered conditional backpay as a remedy at this stage of the
proceeding. See id at *7.

100. Id.

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IND. INT'L & COMP. L. REv.

deference to the NLRB's own administrative opinion at the Board level,'' this
result is hardly surprising.

B. FLSA

There is consensus among the courts, before and after IRCA 10 2 and after
Hoffman, 10 3 that undocumented workers are entitled to FLSA wage and hour
enforcement remedies, including backpay, which is unpaid wages for work
already performed. 1°4 The legislative history of IRCA explicitly supports this
conclusion.105 Yet at least one court has indicated that it will not allow a wage
claim in a case where the worker obtained his employment in violation of
IRCA. 06

The United States Department of Labor has indicated that it will maintain
its practice of full enforcement of the FLSA, without taking into account
whether the employee is undocumented, on the theory that enforcement of the
wage claims for work actually performed is different from the backpay remedy
precluded in Hoffman.107 This policy statement also includes enforcement of
the Migrant and Seasonal Agricultural Worker Protection Act (AWPA). 0 8

In summary, two norms are now evident with regard to allowing the
undocumented worker to pursue wage claims under the FLSA. First, the
immigration status of the claimant will most likely be undiscoverable, based on
the fact that allowing discovery into this area would have a chilling effect on
the filing of wage claims. 109 Second, the Hoffman decision generally will not

101. See supra notes 35-37 and accompanying text (discussing Justice Breyer's view in the
Hoffman dissent regarding the majority's lack of deference to the NLRB in the Hoffman
decision).

102. See generally Richard E. Blum, Labor Standards Enforcement and the Realities of
Labor Migration: Protecting Undocumented Workers after Sure-Tan, The IRCA and Patel, 63
N.Y.U. L. REV. 1342, 1355 (1988) (discussing cases before and after IRCA where FLSA
protections were afforded to undocumented workers, in particular, the Eleventh Circuit Court of
Appeals, which decided Patel v. Quality Inn South, 846 F.2d 700 (11 th Cir. 1988), holding that
the undocumented worker was "entitled to the full range of available remedies under the FLSA
without regard to his immigration status").

103. See supra notes 38-47 and the cases cited therein:
104. See Blum, supra note 102, at 1344.
105. See id. at 1368 (discussing how IRCA was not meant to preclude FLSA and other

labor law protections).
106. See Ulloa v. Al's All Tree Serv., 768 N.Y.S.2d 556, 558 (N.Y. D. Ct. 2003). This

result stands in contrast to the New York Attorney General's view regarding state wage
payments, where they would be enforced for undocumented workers. See Op. Att'y Gen. 2003-
F3 (N.Y. Oct. 21, 2003), 2003 WL 22522840.

107. See U.S. Department of Labor, Employment Standards Division, Application of U.S.
Labor Laws to Immigrant Workers: Effect of Hoffman Plastics Decision on Laws Enforced by
the Wage and Hour Division (Fact Sheet #48) (Aug. 14, 2002), available at http://www.dol.govl
esa/regs/compliance/whd/whdfs48.htm (last visited Dec. 30, 2004), and cases cited therein.

108. Id. The AWPA is codified at 29 U.S.C. § 1801 et. seq. (2000).
109. See supra notes 38-47 and cases cited therein. See also Cabrera v. Ekema, No.

250854, 2005 Mich. App. LEXIS 616 (Mich. Ct. App. March 10, 2005) (denying discovery

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UNDOCUMENTED WORKER AFrER HOFFMAN

bar recovery of wage claims," 0 a policy that reduces the incentives for
unscrupulous employers from knowingly hiring undocumented workers and
taking a chance of violating the FLSA and IRCA in the hope that the
employees' undocumented status will bar their recovery of wages for work
already performed."'1

C. Anti-Discrimination Laws: The ADA, Title VII, and State Anti-
Discrimination Laws

L6pez v. Superflex, 112 is the only post-Hoffman reported case concerning
an undocumented worker claiming discrimination under the ADA. The court
did not reach the merits, but it is clear that it would certainly have denied the
undocumented worker any remedies had the issue been before the court.'13

Prior to the IRCA, courts interpreted the other main federal anti-
discrimination statute, Title VII, as affording protection to undocumented
workers.114 After the IRCA, however, the Fourth Circuit Court of Appeals held
en banc that because undocumented workers are ineligible for employment in
the United States, they are ineligible for Title VII remedies." 5

In at least one post-Hoffman Title VII reported opinion," 6 the court did
not require the employee to disclose his immigration status. Thus, the court did
not decide the case on the merits; however, the court gave indications of not
finding Hoffman dispositive on the availability of backpay as a remedy for
violations of Title VII. 117 The Ninth Circuit Court of Appeals reaffirmed this
view in Rivera v. NIBCO, Inc., "8 where, in an interlocutory appeal, the court
held that an employer's discovery request as to the former employee's

regarding worker's Social Security number in suit under FLSA).
110. See supra note 102 and case cited therein.
111. Recent research has shown that the industries in which the undocumented workers are

mostly laboring are among those that are most represented in wage claims violations. See Smith
et al., supra note 67, at 600 (citing survey by the Department of Labor showing that in the year
2000, 100 percent or all poultry processing plants surveyed were found to be noncompliant with
federal wage and hour laws).

112. L6pez v. Superflex, Ltd., No. 01-Civ.-10010(NRB), 2002 U.S. Dist. LEXIS 15538
(S.D.N.Y. Aug. 21, 2002).

113. See supra notes 59-65 and accompanying text for a discussion of L6pez.
114. See generally Maria Ontiveros, To Help Those Most In Need: Undocumented

Workers' Rights and Remedies under Title VII, 1994 N.Y.U. REv. L. & SOC. CHANGE 608,614
(1994) (discussing cases regarding Title VII coverage of undocumented workers).

115. See Egbna v.Time-Life Libraries, 153 F.3d 184, 186 (4th Cir. 1997) (en banc).
116. See De La Rosa v. N. Harvest Furniture, 210 F.R.D. 237 (C.D. I11. 2002).
117. See supra notes 48-54 and accompanying text for a discussion of De La Rosa. In

another recent decision, EEOC's motion to deny the employer pretrial access to the immigration
status of the charging parties was granted based on the court's view that failure to do so "would
significantly discourage employees from bringing actions against their employers who engage in
discriminatory employment practices." EEOC v. First Wireless Group, 225 F.R.D. 404, 406
(E.D.N.Y. 2004). The court in this case explicitly rejected the employer's argument that any
restriction based on such an in terrorem effect is the province of the legislature. Id. at 407.

118. Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004), reh'g denied, 384 F.3d 822
(9th Cir. 2004), cert. denied., 73 U.S.L.W. 3415, 2005 WL 517010 (2005).

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IND. INT'L & COMP. L. REv.

immigration status in a Title VII case placed an undue burden on the party
bringing the claim." 9 Although the issue of backpay was not before the court,
it nevertheless asserted that its interpretation of Hoffman's prohibition of
backpay under NLRA did not serve to prohibit a district court from awarding
backpay to a Title VII plaintiff.120 This assertion, however, was subject to
strong criticism by the dissent in the denial of a rehearing en banc of this case.
Judges Bea, Kozinski, Kleinfield, and Gould dissented in a lengthy and well
articulated opinion, stating:

The panel's decision allows a plaintiff who claims that racially
discriminatory firing caused backpay and frontpay lost wages,
to refuse to answer deposition questions touching on her place
of birth and immigration status. Thus, the panel's decision
impedes the ascertainment of the truth in advance of trial,
thereby profoundly subverting the purposes of liberal
discovery in civil cases. The decision also frustrates the
purposes of national immigration policy: to limit employment
benefits to American citizens and foreign persons authorized
to work in this country' 2 '

The dissenters' characterization of national immigration policy as limiting
employment benefits only to U.S. citizens and authorized noncitizens is
particularly striking for its extensiveness. Although the dissent does not define
the term "employment benefits," one can imagine that any common
interpretation of the term would virtually erode any state or federal labor or
employment law protection for undocumented workers.

The dissent recognized the realities of the litigation process between an
undocumented worker and his or her employer, noting that:

It may be tempting to increase the settlement value or the
award of a minority worker's racial discrimination lawsuit by
allowing her to include claimed lost wages and bar
questioning of her immigration status. After all, the employer
hired her and benefited from her labor. While she was
working, the employer did not dig too deep into whether her
papers were in order. Now that she asserts her civil rights
against the employer's claimed discriminatory firing, the
employer gets righteous, and for all the wrong reasons. 122

119. ld. at 1074.
120. Id.
121. See Rivera v. NIBCO, Inc. 384 F.3d 822, 823-4 (9th Cir. 2004) (Bea, J., dissenting),

cert. denied., 73 U.S.L.W. 3415, 2005 WL 517010 (2005).
122. Id.

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UNDOCUMENTED WORKER AFTER HOFFMAN

The Rivera dissenters to the denial of rehearing en banc further cited
Hoffman and recognized that "[i]f estoppel by the employer's acts could bar
enforcement of our country's Immigration [sic] laws, the panel's opinion might
not be so objectionable. Of course, we know such private conduct cannot
frustrate explicitly stated congressional public policy .... ,,23 In other words,
the dissenters to the denial of rehearing en banc were also concerned about the
realities of the employment relationship between the undocumented worker and
the employer, particularly where an employer might be aware of the worker's
unauthorized status and deriving benefit from his work.

Finally, the dissenters exposed the policy concerns and dangers of the
Rivera approach and highlighted that:

We risk corrupting an admirable civil rights policy to prevent
discrimination when we rely on evasions to enforce it....
The fact is that if plaintiffs do not have authorized
immigration status, they are not entitled to be awarded back
wages or wages they might have earned in the future from a
job which they were incapable of holding, under our
Immigration laws. 124

The words of the ninth circuit dissenters to the denial of rehearing en banc in
Rivera clearly exemplify the tensions inherent in the difficult relationship
among the undocumented worker, the often unscrupulous employer, and the
United States polity.

The United States Supreme Court recently denied certiorari in Rivera,
leaving the ninth circuit opinion as binding precedent. 125 There were no
dissenters to the denial of certiorari and no written opinion of any kind with
regard to the case. Since it is the first time the Supreme Court has reviewed
remedies for undocumented workers following Hoffman, anecdotal reports
suggest that it is seen as an omen for the labor law rights of undocumented
workers in the United States.

However, the view of ninth circuit dissenters to the denial of rehearing en
banc in Rivera found support in Escobar v. Spartan Security Service, a Title
VII sexual harassment case where a lower federal court granted summary
judgment and denied backpay to an undocumented worker based on
Hoffman. 126 The court found that it was foreclosed from doing so by Hoffman's
rationale that an undocumented worker may not receive a backpay award as a

123. Id. (Bea, J., dissenting) (citation omitted).
124. See id. (citations omitted).
125. NIBCO, Inc. v. Rivera, 73 U.S.L.W. 3529, 2005 WL 517010 (Mar. 7, 2005). As

noted supra at note 55, the Supreme Court's denial of certiorari could be analyzed to reflect a
lack of "intense dissatisfaction" of the majority of the Justices with the decision below. See
Peter Linzer, The Meaning of Certiorari Denials, 79 COLUM. L. REV. 1227, 1229 (1979).

126. Escobar v. Spartan Security Serv., 281 F. Supp. 2d. 895, 897 (S.D. Tex. 2003).

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IND. INT'L & COMP. L. REv.

remedy, since it would represent earnings that he could not legally have
earned.1

27

However, the federal agency charged with the enforcement of Title VII
views Hoffman differently. Almost immediately after Hoffman, the Equal
Employment Opportunity Commission (EEOC) indicated that it "will evaluate
the effect Hoffman may have on the availability of monetary remedies to
undocumented workers under the federal employment discrimination
statutes."'' 28 The EEOC has further asserted:

The Supreme Court's decision in Hoffman in no way calls into
question the settled principle that undocumented workers are
covered by the federal employment discrimination statutes and
that it is as illegal for employers to discriminate against them
as it is to discriminate against individuals authorized to work.
When enforcing these laws, EEOC will not, on its own
initiative, inquire into a worker's immigration status. Nor will
EEOC consider an individual's immigration status when
examining the underlying merits of a charge. The
Commission will continue vigorously to pursue charges filed
by any worker covered by the federal employment
discrimination laws, including charges brought by
undocumented workers, and will seek appropriate relief
consistent with the Supreme Court's ruling in Hoffman.
Enforcing the law to protect vulnerable workers, particularly
low income and immigrant workers, remains a priority for
EEOC.

129

Thus, the coverage and enforcement of the anti-discrimination laws under
the EEOC's purview has remained the same after Hoffman. It is only in the
availability of remedies that the administrative agency has to implement
changes wrought by the court decisions denying compensation to
undocumented workers. The EEOC's policy, however, will effectively cause
the agency to investigate claims, in an effort to protect the vulnerable workers
in our midst, where there might be no remedy because of these court decisions
limiting such remedies.

At least two state courts have taken a more expansive view of Hoffman's
reach. Recently in a state court under a state anti-discrimination statute denied
an undocumented worker recovery using Hoffman. In Crespo v. Evergo

127. Id.
128. U.S. Equal Employment Opportunity Commission, Rescission of Enforcement

Guidance on Remedies Available to Undocumented Workers Under Federal Employment
Discrimination Laws, at http://www.eeoc.gov/policy/docs/undoc-rescind.html (June 27, 2002)
(last visited Dec. 30, 2004).

129. Id.

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UNDOCUMENTED WORKER AFTER HOFFMAN

Corp., 130 the Superior Court of New Jersey affirmed the trial court's denial of
economic damages, including backpay, to an undocumented worker suing for
wrongful termination under New Jersey's Law Against Discrimination
(LAD). 13' The court also dismissed the complaint in its entirety, holding that in
light of Hoffman's strong enforcement of the policies that the IRCA served, the
plaintiffs statutory bar to employment precluded her eligibility for various
economic and non economic remedies. 132

In an unpublished opinion, another state court denied an undocumented
worker recovery for discrimination based on medical condition, physical
disability and wrongful termination under its state antidiscrimination statute. 33

The court cited Hoffman and found that the unclean hands doctrine precluded
recovery of an employee who presented false documents to be hired in the first
place. 34 The result then is that with regard to recovery for undocumented
workers under Title VII and state antidiscrimination statutes, the period post
Hoffman has seen both cases allowing and cases denying recovery for the
worker. It is the case that the future is yet to come, and certainly the denial of
certiorari in Rivera will likely be seen to represent the dominant trend in this
area.

D. Worker's Compensation

In general, worker's compensation compensates employees who are
injured on the job in exchange for their renunciation of the ability to sue the
employer; the statutory schemes vary from state to state. As to the treatment of
undocumented workers, from the coverage of the law to allowing of benefits for
the undocumented workers, the prevailing trend favors the undocumented
worker. In Texas, for example, undocumented workers have not been found to
be precluded from compensation, both pre135-and post-IRCA and Hoffman.
Similarly, post-IRCA, courts have found that undocumented workers are
entitled to worker's compensation benefits in California,136 Connecticut, 37

Louisiana, 138 New Jersey, 139 New York, 140 Oklahoma, 141 Minnesota, 142 and

130. Crespo v. Evergo Corp., 841 A.2d 471 (N.J. Super. Ct. App. Div. 2004).
131. N.J. STAT. ANN. § 10:5-1-10:5-42 (West 2004).
132. Crespo, 841 A.2d. at 401.
133. Morejon v. Hinge, No. BC255537, 2003 WL 22482036 at *1 (Ca. Ct. App., Nov. 21,

2003).
134. Id. at *10.
135. See Commercial Standard Fire & Marine Co. v. Galindo, 484 S.W.2d. 635 (Tex. App.

1972). Florida is another state that allowed undocumented employees worker's compensation
benefits pre-IRCA since its statute includes "aliens" as employees. See Gene's Harvesting v.
Rodriguez, 421 So. 2d 701 (Fla. Dist. Ct. App. 1982).

136. See Del Taco v. Worker's Comp. Appeals Bd., 94 Cal. Rptr. 2d 825 (Cal. Ct. App.
2000).

137. See Dowling v. Slotnik, 712 A.2d 396 (Conn. 1998).
138. See Artiga v. Patout, 671 So. 2d 1138 (La. Ct. App. 1996).

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IND. INT'L & COMP. L. REV.

Virginia. 143 Pennsylvania and Minnesota have also allowed, under supreme
court opinions, undocumented workers to obtain worker's compensation
benefits post-Hoffman. 144 Other states that allow the undocumented to obtain
worker's compensation post-Hoffman include Florida, 145 Ohio,14 6 and
Oklahoma. 147 Thus, in the worker's compensation area, the undocumented
status of the injured employee has been evaluated by courts in different states
before IRCA, which banned the employment of undocumented workers, after
IRCA, and after Hoffman.

Virginia is a special case because its supreme court denied benefits to an
undocumented worker in 1999. Its rationale was to attempt to reconcile its state
worker's compensation law with the IRCA. 148 Shortly thereafter, the general
assembly overrode the governor's veto, and passed legislation that gave
worker's compensation coverage to undocumented workers. 149

There are states that have limited or denied the availability of worker's
compensation post-IRCA and post-Hoffman. For example, a court denied an
undocumented worker in Nevada vocational rehabilitation benefits post-IRCA
because of his unauthorized entry into the United States and his inability to
work under IRCA.150 Post-Hoffman, courts have denied worker's compensation
to undocumented workers in Pennsylvania' 5' and Michigan. Michigan used
Hofftnan to limit benefits from the date of discovery of an immigrant worker's
undocumented status based on the crime of working in violation of RCA.'52

Thus, in the area of worker's compensation, there has been a trend to allow
recovery by the undocumented worker, although it is not a uniform rule. There
have been varying results based on the statutory definition of "employee," but
overall the negative effect of Hoffnan has been less pronounced in this area.
This is probably attributable to the state law analysis that the courts undertake
in deciding whether an injured undocumented worker can obtain compensation
for workplace injuries.

139. See Mendoza v. Monmouth Recycling Corp., 672 A.2d 221 (N.J. Super. Ct. App. Div.
1996).

140. See N.Y. WORKERS' COMP. LAW § 17 (McKinney 2004).
141. See Lang v. Landeros, 918 P.2d 404 (Okla. Ct. App. 1996).
142. See Correa v. Waymouth Farms, Inc., 664 N.W.2d 324 (Minn. 2003).
143. H.B. 1036, 2000 Gen. Assem., Reg. Sess. (Va. 2000).
144. See supra Part H.B. and cases cited therein.
145. See Safeharbor Employer Serv. I, Inc. v. Cinto Velazquez, 860 So. 2d 984 (Fla. Dist.

Ct. App. 2003).
146. See Rajeh v. Steel City Corp., 813 N.E.2d 697 (Ohio Ct. App. 2004).
147. See Cherokee Indus., Inc. v. Alvarez, 84 P.3d 798 (Okla. Civ. App. Okla. 2003).
148. Granados v. Windson Dev. Corp., 509 S.E.2d 290 (Va. 1999).
149. H.B. 1036, 2000 Gen. Assem., Reg. Sess. (Va. 2000).
150. Tarango v. State Indus. Ins. Sys., 25 P.3d. 175 (Nev. 2001).
151. See Mora v. DDP Contracting Co., 845 A.2d 950 (Pa. Commw. Ct. 2004).
152. Sanchez v. Eagle Alloy, Inc., 658 N.W.2d 510 (Mich. Ct. App. 2003).

[Vol. 15.2



UNDOCUMENTED WORKER AFTER HOFFMAN

E. Tort and Other Forms of Recovery

In actions for damages in tort cases, whether courts will allow an
undocumented worker to recover for injuries will vary from state to state.
Some courts have construed the Hoffman decision narrowly, while others have
applied the ruling in a more generalized manner. In Florida, a federal district
court granted an employer's motion for summary judgment, denying an award
of lost wages to the estate of an undocumented laborer who died from injuries
sustained in a forklift accident at a construction site.1 53 Relying on Hoffman,
the court reasoned that awarding lost wages would be equivalent to violating
the IRCA. 154 The court's conclusion that awarding lost wages is inconsistent
with the decision in Hoffman stems from its equation of backpay and lost
wages, because both are awards for work never performed. 155

The Southern District of New York departed from Florida's view,
adopting a more limited interpretation of Hoffman by holding that an injured
subcontractor's employee's alien status did not deprive the employee of his
right to lost wages.156 The court noted that, unlike Hoffman, this case involved
a claim for relief under state, not federal, law. 157 The court noted that the
employee's immigration status was relevant in making a determination of
whether an award for lost wages was appropriate; however, it also
acknowledged that undocumented persons do in fact obtain employment in the
United States. 58 As a matter of New York's public policy, the court did not
find that injured workers are barred from compensation in the form of
backpay. 59 Similarly, in Cano v. Mallory,'60 a New York state court post
Hoffman found that the undocumented status of an injured worker was not a bar
to the civil action. Yet, it allowed the jury to consider the worker's
undocumented status with regard to the issue of lost wages, but not regarding
the issue of pain and suffering. This is but an example of the mixed results
courts have reached following Hoffman.'6 1

However, most recently in New York two lower companion cases limited
the availability of remedies for injured undocumented workers filing personal
injury lawsuits for workplace related injuries. 162 The undocumented workers

153. Veliz v. Rental Serv. Corp. USA, 313 F.Supp. 2d 1317, 1337 (M.D. Fla. 2003).
154. Id. at 1336.
155. Id. at 1337.
156. Madeira v. Affordable Hous. Found. Inc., 315 F.Supp. 2d 504,507 (S.D.N.Y. 2004).
157. Id.
158. Id.
159. Id.
160. Cano v. Mallory Mgmt., 760 N.Y.S. 2d. 816 (N.Y. Sup. Ct. 2003).
161. See id.
162. See Sanango v. 200 E. 16th St. Hous. Corp.,No. 2571, 2004 N.Y. App. Div. LEXIS

15637 (N.Y. Sup. Ct. Dec.28, 2004); Balbuena v. IDR Realty, Inc., No. 2191, .2004 N.Y. App.
Div. LEXIS 15627 (N.Y. Sup. Ct. Dec. 28, 2004). In an unpublished case decided days earlier,
another division of the New York Supreme Court found that the plaintiffs undocumented
status should not be a bar to recovery but only a factor for the jury to consider when determining

20051



IND. INT'L & COMP. L. REv.

were allowed to pursue damages by the trial court for pain and suffering. 63

However, following Hoffman and its interpretation of IRCA's policy, the court
found that the worker's undocumented status restricted the damages award for
lost earnings to the amount he would have earned in his home country, since
"an award based on a prevailing foreign wage would not offend any federal
policy."' 164 There was vigorous dissent by Judge Ellerin, who asserted that the
legislative history of IRCA indicated that Congress did not intend to preempt
state common law on the availability of damages for lost wages in tort
actions. 165 The view expressed by Judge Ellerin's dissent has been followed
by the Court of Appeals in Texas in allowing an injured undocumented worker
to present evidence to recover damages for lost earnings, finding that Hoffman
and its view of IRCA did not apply to state common law personal injury
damages. 66

With regard to other forms of recovery, post Hoffman, the Tennessee
Court of Appeals allowed an employee to recover damages for breach of
contract and intentional misrepresentation when he was hired and brought to
the United States legally by a company which subsequently did not file his
immigration documents, at which time he became undocumented. 167 The court
declined to extend Hoffman to such a case, finding it inapplicable because it
was based on a "delicate balance of immigration law and labor law" under the
NLRA. 1

68

As seen above, a review of the main statutes and court decisions affecting
undocumented workers in this country reveals a hostile inconsistency, 169 where
they are sometimes afforded remedies and other times they are not, based on
predictable positions with regard to Hoffman. Table 1 below sets forth a
selected summary of the current remedies available to undocumented workers
under different statutory regimes. Using IRCA and its statement of the public
policy against the hiring of undocumented workers, and following Hoffman,
these provisions and decisions often neglect the real effects on the working

entitlement to future lost wages. See Celi v. 42nd St. Dev. Project, Inc., No. 37491/01, 2004
WL 281902, *3 (N.Y. Sup. Ct. Nov. 9, 2004). An earlier case had refused to extend Hoffman to
include state law tort remedies and denied discovery requested by employer to ascertain the
worker's citizenship and tax records. See Llerena v. 302 W. 12th St. Condo., No. 102490/03,
2004 WL 279316, *2 (N.Y. Sup. Ct. Oct. 7, 2004).

163. Sanango, 2004 N.Y. App. Div. LEXIS 15637 at *2-3.
164. Balbuena, 2004 N.Y. App. Div. LEXIS 15627 at *2.
165. Id. at *5 (Ellerin, J., dissenting).
166. Tyson Foods Inc. v. Guzman, 116 S.W.2d 233, 244 (Tex. Ct. App. 2003); Wudson

Rosa v. United Rentals, Inc., No. 2004-232, 2005 N.H. LEXIS 35 (N.H. 2005) (allowing
undocumented worker to sue for recovery of injuries while finding his immigration status
admissible evidence).

167. See Chopra v. U.S. Professionals L.L.C., No. W2004-01 189-COA-R3-CV, 2005 WL
28036 (Tenn. Ct. App. Feb. 2, 2005). Two state law cases predating Hoffman had also allowed
unauthorized workers to sue for breach of contract, see Gates v. Rivers Constr. Co., 515 P. 2d
1020, 1024 (Alaska 1973) or recover based on an unjust enrichment theory, see Nizamuddowlah
v. Bengal Cabaret, Inc., 399 N.Y.S.2d 854, 857 (N.Y. Sup. Ct. 1977).

168. Chopra, 2005 WL 28036 at *3-4.
169. See supra Part I.

[Vol. 15.2



UNDOCUMENTED WORKER AFTER HOFFMAN

conditions and the lives of undocumented workers. For example, one of the
overlooked aspects of post-IRCA life for the undocumented worker is the
enforcement of sanctions against employers for the hiring of undocumented
workers.170 Argentina, among other countries, focuses on the employer as the
locus of the enforcement of sanctions against the hiring of undocumented
workers, as will be shown in the next part of this article. 7 '

Table 1. Summary of Applicability and Remedies Available to Undocumented Workers in

the United States Post Hoffman Decision under Various Labor and Employment Laws.

Legal Case(s) Applicability/Remedy Available
Regime
National Hoffman Plastic Compounds Only cease and desist order. No

Labor v. NLRB, 535 U.S. 137 (2002) backpay as remedy for unfair labor
Relations practices. May include compensation

Act (NLRA) In re Tuv Taam, for work performed.
340 NLRB No. 86 (2003)

Fair Labor Singh v. Charanjit Jutla, Back wages for work actually
Standards 214 F. Supp. 2d. 1056 (N.D. Cal. 2002) performed. Immigration status not

Act relevant nor discoverable.
(FLSA) Zeng Liu v. Donna Karan,

207 F. Supp. 2d 191 (S.D.N.Y. 2002)

Americans Lopez v. Superflex An award of backpay is not a
with (Unpublished opinion) prerequisite for punitive damages

Disabilities under the ADA. Do not need to plead
Act (ADA) lawful presence. Yet court in dicta

suggests that if issue came before it, it
would probably follow Hoffman.

Title VII De La Rosa v. Northern Harvest Furniture, Undocumented workers are covered by
(Anti Disc.) 210 F.R.D. 237 (C.D. Ill. 2002) (Title VII) federal employment discrimination

and State statutes.
Anti Disc.

Statutes Rivera v. NIBCO, Undocumented worker not forced to
364 F.3d 1057 (9th Cir. 2004) (Title V) disclose immigration status.

Crespo v Evergo Corp., Undocumented worker was not
841 A.2d 471 (N.J. Super. Ct. App. Div. allowed to recover economic damages

2004) (NJ state law) including backpay.

Escobar v. Spartan, Unclean hands prevented recovery
281 F. Supp. 2d 895 (S.D. Tex. 2003)

Morejon v. Hinge
(CA - unpublished opinion)

170. See supra note 6 for data regarding the lax enforcement of employer sanctions for the
hiring of undocumented workers.

171. SeeinfraPartIV.

20 05]



IND. INT'L & COMP. L. REv.

Legal Case(s) Applicability/Remedy Available
Regime

Worker's Reinforced Earth Co. v. Worker's Comp. Worker's Compensation benefits were
Comp. App. Bd (Astudillo), 810 A.2d 99 not precluded by undocumented status.

(Pa. 2002) Also CA, OK, MN, TN, OH, TN
(unpublished)

Sanchez v. Eagle Alloy Inc., Cannot collect worker's compensation
684 N.W.2d 342 (Mich. 2004) benefits upon employer being notified

Mora v. DDP Contractors of undocumented status. No wage loss
845 A.2d 950 (Pa. Commw. Ct. 2004) benefits if undocumented. Also IN

(unpublished)

Tort Madeira v. Affordable Housing Inc., Can collect compensatory damages for
Recovery 315 F. Supp. 2d 504 (S.D.N.Y. 2004) personal injuries sustained during

course of work.

Tyson v. Guzman Tort recovery not precluded by
116 S.W.3d 233 (Tex. App. 2003) undocumented status

Veliz v. Rental Service Corp., 313 F.Supp. Cannot recover for lost wages in a tort
2d 1317 (N.D. Fla. 2003) lawsuit.

Sanango v. 200 E. 161h Str. Hous. Can recover lost earnings from home
(Unreported FL opinion) country.

Balbuena v. 4 2
nd Str. Dev.

(NY - unreported opinion)

Cano v. Mallory, Issue of undocumented status may be
760 N.Y.S. 2d 816 (N.Y. Sup. Ct. 2003) presented to the jury with regard of

lost earnings
Celi v. 42d' Str. Dev.

(NY - unpublished opinion)

[Vol. 15.2



UNDOCUMENTED WORKER AFTER HOFFMAN

IV. CURRENT STATUS OF IMMIGRATION LAW POLICY IN ARGENTINA

REGARDING UNDOCUMENTED WORKERS

Argentina is a Latin American country with a very rich immigrant past172

and present. 73 Because Argentina is one of the main immigrant receiving
countries in the Americas, it is worth analyzing and comparing its treatment of
the undocumented worker with the United States's. Although Argentina boasts
a large immigrant population," 4 its undocumented population in comparison to
the United States makes up a significantly smaller proportion of its inmigrant
population. 75 Nevertheless, it is important to analyze the response of the
Argentine legal system to undocumented workers, since that country has
opened its doors to immigrants despite serious economic difficulties, and has
not experienced the deep ambiguity or the hostile inconsistency with regard to
these workers seen in the United States.

In recent times, the complexities of immigration law and policy, and their
potential conflicts with worker rights and privileges, have taken a greater
meaning following Argentina's entry into MERCOSUR, the Southern Cones'
scheme of regional integration. 176 Now, two different sources of law may affect

172. See FERNANDO DEVOTO, HISTORIA DE LA IMMIGRACION ARGENTINA 294 (2003)
(noting that the 1914 census showed the country to be 27.3% immigrant); see also, Lawrence
M. Friedman, Erewhon: The Coming Global Legal Order, 37 STAN. J. INT'L L. 347 (2001)
(describing Argentina as an "immigration"country that was always eager to recruit new
citizens); CARL SOLDBERG, IMMIGRATION AND NATIONALISM 7 (1970) (discussing Argentine
political view that "to govern is to populate," and the quickest method to do this is via
immigration); see also Barbara Hines, An Overview ofArgentine Immigration Law, 9 IND. INT'L
& COMP. L. REV. 395, 395 (1999) (discussing Argentine Constitution's provisions encouraging
immigration to that country.").

173. See U.N. RESEARCH INST. FOR Soc. DEv., THE DYNAMICS OF ARGENTINE MIGRATION vii
(Alfredo Lattes & Enrique Oteiza, eds., 1987) (discussing current pattern of migration in
Argentina, which shows substantial influx of immigrants).

174. Current official figures indicate that the immigrant population in Argentina is
comprised of a little under two million immigrants. See Instituto Nacional de Estadistica y
Censo, Poblaci6n total por lugar de nacimiento, segtin provincia, at http://www.indec.
mecon.gov.ar/ (last visited Dec. 30, 2004).

175. The latest data from the International Labor Organization indicates that there are
800,000 undocumented immigrants in Argentina. En la Argentina: Hay 800 mil immigrantes
ilegales, EL TRIBUNO (Salta, Argentina) May 21, 2004 available at http://www.eltribuno.com.ar/
2004/nacionales/20040521_221524.php (last visited Mar. 15, 2005). Other estimates have
found the undocumented population in Argentina to be in 50,000 to 2,500,000 range. See Hines
supra note 172 at 398.

176. The Southern Cone of South American typically refers to the southernmost countries
of South America: Argentina, Chile, and Uruguay. See Horacio Sabarots, Inmigrantes vs.
"Ilegales": Estereotipos Desigualitarios en la Sociedad Argentina, at 2, available at
http://www.ehu.es/CEIC/AMERICA/recursos/INMIGRANTES-VS.pdf (Oct. 1999) (last visited
Mar. 15, 2005). For an excellent discussion of MERCOSUR, see Rafael A. Porrata-Doria, Jr.,
MERCOSUR: The Common Market of the Twenty First Century?, 32 GA. J. INT'L & COMP. L. 1
(2004) (discussing MERCOSUR's founding ascendancy in the 1990s); see infra Section IV.B.
(discussing MERCOSUR and its implications); see also JOHN WEEKS, CENTER FOR
DEVELOPMENT POLICY AND RESEARCH, HAVE WORKERS IN LATIN AMERICA GAINED FROM

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IND. INT'L & COMP. L. REV.

undocumented workers in Argentina, depending on their country of origin and
migration. Immigrants coming from a non-MERCOSUR country are subject to
Argentine immigration law as well as any other treaty or bilateral agreement
between the immigrant's country of origin and Argentina.177 However, if an
immigrant is from a MERCOSUR participant or associate country, and
migrates to another participating or associate country, he or she will be subject
to the country's immigration laws as well as MERCOSUR- in a light most
favorable to the immigrant- to effectuate MERCOSUR's final objective of the
free circulation of persons among its signatory countries.1 78 Though possibly
subject to more than one source of law, immigrant workers to Argentina can at
the very least rest assured that neither scheme mandates the revocation of
specific labor remedies should they become undocumented.

A. Argentina's Immigration Law

Argentina's current immigration law includes particular provisions
designed to protect the immigrant worker legally residing there. Article 20 of
the immigration law provides that the country will admit foreigners and classify
them into one of three categories: permanent residents ("residentes
permanentes"), temporary residents ("residentes temporarios"), or transient
residents ("residentes transitorios."). 179 Until the Argentine government
processes all formal documents, it grants the foreigner applying for any of the
above statuses a form of residency called precarious residency status
("residencia precaria") for a period of 180 days. 180 This provisional residency
affords foreigners various privileges, including the ability to work during that
period. 181 Obtaining this precarious residence is not a very complicated matter,
and is usually completed with relative ease and without the long waits endured
by immigrants wanting to enter the United States. For example, the number of
immigrants moving to Argentina permanently in the years 1995-2002, is but a
fraction of those seeking permanent residency in the United States in the year
2004.182

LIBERALIZATION AND REGIONAL INTEGRATION?, CDPR DISCUSSION PAPER. 1199 (1999),
available at http://www.soas.ac.uk/cdp rfiles/dp/DP 1JW.PDF (discussing workers' rights and
exercise of those rights as key to the equitable distribution of gains from liberalization and
integration growth in Latin America).

177. See e.g. Law No. 25.889, May 17, 2004, B.O. 18/05/04 (Arg.) (bilateral Migration
Agreement between Argentina and Peru).

178. See Law No. 25.871, Jan. 20, 2004, B.O. art. 28 (Arg.).
179. Id. at art. 20.
180. Id.
181. Id.
182. During the years 1995-2002, census data shows that 89,388 foreigners settled

permanently in Argentina for those years. INsTIUTO NACIONAL DE ESTADISTICA Y CENSOS,

RADICACION DEFINrIVA DE EXTRANJEROS POR AqO DE OBTENCION DEL BENEFICIO SEGUN GRuPOs

DE NAICONALIDADES 1995-2002, at http://www.indec.mecon.ar/ (last visited Mar. 25, 2005). In
comparison, there were 662,029 immigrants admitted to the United States in the year 2004
alone. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, CrIZENSHIP AND IMMIGRATION

SERVICES, IMMIGRATION INFORMATION, IMMIGRATION IN FISCAL YEAR 2004, at

[Vol. 15.2



UNDOCUMENTED WORKER AFTER HOFFMAN

Foreign workers are covered by treaties or agreements entered into by the
Republic of Argentina and the country's immigration law, whichever is more
favorable for the migrant person. 83 However, Article 53 explicitly prohibits
foreigners residing "irregularly" in the country from working.'84  In this
context, the term "irregular" refers to those immigrants residing in Argentina
without proper residency documentation.

Like immigration law and policy in the United States, Argentine
immigration law prohibits employers from employing foreign workers residing
"irregularly."'' 85 However, further provisions make clear that the application of
this law will not exempt an employer from obligations emerging from labor
legislation regarding foreigners, regardless of their immigration status.186 More
importantly, the law states that immigration status will not affect the rights of
foreign workers acquired through work already performed. 87 Similar to U.S.
policy as set forth in IRCA, the law in Argentina also imposes sanctions on
those who employ or recruit foreign workers lacking the proper migration status
to work. 188 For every foreigner hired by an employer in violation of such
provision, the law imposes a fine in the amount of fifty minimum salaries. 189

Thus, in summary, one of Argentina's articulated goals regarding foreign
workers is for the country to adopt all necessary measures that will effectively
eliminate the employment of immigrants with "irregular" status (those without
working or residency papers). 19° In an effort to promote this purpose,
Argentina's immigration law calls for the imposition of sanctions on employers,
without diminishing the rights of immigrant workers in regard to their
employment. 191

Argentine case law confirms this view. In an early leading en banc
appellate decision, the court of appeals in labor matters found that the fact that
the employment contract with an undocumented worker is invalid should not be
a bar for the judiciary to recognize the worker's right to obtain his labor law

http://uscis.gov/graphics/sharedlaboutus/statistics/annuallfy94/722.htm (last visited Mar. 25,
2005).

183. Law No. 25.871 at art. 28.
184. Id. at art. 53.
185. Id. at art. 55.
186. Id. at art. 56.
187. Id.
188. Id. at art. 55. See also Law No. 20.744, May 13, 1976, B.O. art. 40, 42 (Arg.)

(prohibition of illegal employment contracts directed at the employer and will not affect the
right of the employee from receiving pay for work performed during the contract period or
compensation after the contract ends.).

189. Id. at art. 59. The minimum salary in Argentina currently is 450 pesos per month for
salaried employees and 2.25 pesos per hour for hourly workers. Decree No. 1194, Sept. 1,
2004, B.O. art. I (Arg.). The current exchange rate is approximately 3 pesos per U.S. Dollar;
thus, the fine amounts under Argentine law for the hiring of undocumented workers would be
22,500 pesos or approximately $7500 U.S. Dollars for salaried employees and 112.50 or $37.50
U.S. Dollars per hour for hourly workers. Compare these fines with those recently assessed to
the employers who hired undocumented workers in the United States, supra note 6.

190. Law No. 25.871, Jan. 20, 2004, B.O. art. 16 (Arg.).
191. Id.

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IND. INT'L & COMP. L. REV.

remedies. 192 Subsequent cases have reaffirmed this holding and for example,
stated that the employer cannot raise the defense of the void contract to an
action by an employee 193 and have even allowed an undocumented worker to
recover compensation for being fired for refusing to perform certain tasks.' 94

Furthermore, an undocumented worker's right to salary for unlawful firing has
been confirmed by a court even in the face of the employer's knowing act of
hiring an undocumented Chilean worker.195 Finally, once an employer has
received a fine for hiring undocumented workers, courts have refused to apply
equitable principles or consider ability to pay as a factor to reduce the fine.' 96

Instead they require strict compliance with the enforcement of employer
sanctions for having hired undocumented workers in Argentina., 97

B. Immigrant Workers and the Law of MERCOSUR

The existence of MERCOSUR further complicates the situation regarding
immigrant workers in Latin America and particularly in Argentina.
MERCOSUR is a regional integration organization in which Argentina, Brazil,
Uruguay, and Paraguay are member countries, and Chile and Bolivia are
associate countries. 198 Created by the Treaty of Asunci6n in 1994,
MERCOSUR's ultimate goal is to create a common market for member
countries throughout the southern cone region. 199 In addition to the removal of
trade restrictions among member countries and the imposition of a common
tariff to non-member countries, a common market includes the free movement
of production factors such as labor, capital, and resources. 2

00

In 2002, all MERCOSUR member and associate countries signed an
agreement addressing and establishing residency norms for immigrant
workers. 20 1  The agreement establishes a uniform method for granting
temporary resident status of up to two years for immigrants of member

192. "Nauroth y Echegaray," CNTrab. 193 [LEXIS Argentina No. 60000831] (1973) (en
banc).

193. "Portillo, L6pez," CNTrab. No. 6 [LEXIS Argentina No. 13/54011 (1987).
194. "De Aguilar, Marinete," CNTrab. No. 10 [LEXIS Argentina No. 30000530] (1999).
195. "Lezcano, Angelica," CNTrab. No. 3 [1994 J.A. 387].
196. "Coman, Ana R. v. Dir. Nac. Migraciones," CNFed. No. 4 [May 21, 2002].
197. Id.
198. See Argentina-Brazil-Paraguay-Uruguay: Treaty Establishing a Common Market,

Mar. 26, 1991, 30 I.L.M. 1041 (entered into force Dec. 31, 1994); see also Porrata-Doria, supra
note 176, at 1.

199. Id.
200. Iris Mabel Laredo, The Regional Integration as an Alternative in the New World

Order, in INTEGRACION REGIONAL AMERICANA COMPARADA (John S. Shultz ed., 1995).
201. Law No. 25.903, July 13, 2004, B.O., art. I (Arg.) (ratifying Agreement Regarding

Residency for Nationals of MERCOSUR Party States). It should be noted that this Agreement
was proposed as an alternative to a general amnesty program throughout the MERCOSUR. See
Acuerdo Historico en Brasil, LA FRAGUA, (Nov. 12, 2002) (transcript interview with
Argentina's Immigration Minister) (on file with author).

[Vol. 15.2



UNDOCUMENTED WORKER AFTER HOFFMAN

countries.2 2 As was the case in Argentina's immigration law, most of the
provisions included in the agreement aim to protect the rights of those
immigrants of "regular" status.2 °3 For example, according to the agreement, all
participating countries must embrace a unified effort to deter the employment
of "illegal" immigrants in each other's territories.20 4 More specifically, parties
that employ workers in "illegal" conditions will face the imposition of
sanctions. Importantly, however, MERCOSUR' s provisions also guarantee that
the repercussions of such measures will not affect the rights of immigrant
workers as a consequence of work already performed.20 5 It is in these particular
provisions that the disparity between the United States and Latin America
becomes apparent.

Thus, although immigration laws in Argentina and the MERCOSUR
agreement may be similar to the policy of the United States, those legislative
provisions provide two fundamental distinctions that make an enormous
difference for the rights of undocumented workers. First, the process to obtain
residency status throughout Latin America is much more feasible for
immigrants wanting to migrate. Second, the legislative provisions related to
undocumented workers in Argentina provide a caveat that though courts may
sanction employers for hiring "irregular" immigrants, the worker will retain
those rights acquired as a result of the work already performed. These factors,
when compared with the United States' approach, illustrate an important
distinction in immigration policy and further magnify the implications of
Hoffman to undocumented workers. When analyzed in conjunction, it is fair to
say that "irregular" workers in Argentina enjoy certain established rights that
undocumented workers in the United States do not enjoy, post-Hoffinan, in a
consistent manner.

V. CONCLUSION

At least five solutions to the current hostile inconsistency in the lives of
undocumented workers in the United States exist. Three come in the form of
proposals in the domestic realm; the other two resort to international law
remedies. One commentator has proposed the enactment of a federal statute
that would "specifically provide[] undocumented workers with the right to
bring claims under federal statutes aimed at ensuring fair practices and equal
protection in employment. ' '2

0
6  This proposed statute should include an

available remedy in the event that the traditional labor statute's remedy

202. Id. at art. 5.
203. See, e.g., id. at art.9 (granting equal civil rights to those who have obtained residency

according to the terms of the Agreement).
204. Id. at art.10.
205. Id. at art. 10(b).
206. Elizabeth M. Dunne, The Embarrassing Secret of Immigration Policy: Understanding

Why Congress Should Enact an Enforcement Statute for Undocumented Workers, 49 EMORY

L.J. 623, 672 (2000).

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IND. INT'L & COMP. L. REV.

conflicts with immigration policy. This proposal would appear to be an
excellent solution to the IRCA-induced inability of many courts to effectuate
labor law policy, yet in the current climate, it is not a feasible solution.
Following the September 11, 2001, tragedy, there does not appear to be much
support at the federal legislative level for any seemingly pro-immigrant
legislation. Other federal proposals that have been called for include the
enactment of sanctions against the employers in the amount of wages saved by
hiring undocumented workers,2 °7 or for limited amnesty for undocumented
workers who have good faith labor law claims.208 These also do not appear to
be feasible at this time, for the post-9/1 1 anti-immigrant reasoning stated above.

A second domestic solution suggests a call to state legislatures and courts
to play an even more active role to protect the labor and employment law rights
of the undocumented workers. The example of Virginia in the worker's
compensation context 2°9 should serve as a harbinger for future expansion of
protection of the undocumented. Also, in 2002, shortly after the Hoffman
decision, the state of California passed SB 1818, commonly called the
"Hoffrnan fix." 210 The enactment of Chapter 1071 amends California's Labor
Code,21 Government Code,212 Health and Safety Code,213 and Civil Code,214

and makes immigration status irrelevant for the enforcement of state labor,
employment, civil rights and employee housing laws. The amendment also
prohibits discovery into such status absent a showing of clear and convincing
evidence.215 This is yet another example of the power of the states to overcome
the federal immigration policy's untoward reach, based on the Supreme Court's
interpretation of the IRCA's policy in Hoffman.

The last domestic solution is found in two recently introduced federal
bills that propose to restore and reaffirm the legal rights and remedies of
undocumented workers under civil rights statutes. More specifically, in order
to provide protection to undocumented workers, H.R. 3809, the Fairness and
Individual Rights Necessary to Ensure a Stronger Society (FAIRNESS) Act,

216would amend the language of the Immigration and Nationality Act (INA).The bill proposes to amend section 274A(h) of the INA by including language

207. See Shahid Haque, Note, Beyond Hoffman Plastic: Reforming National Labor
Relations Policy to Conform to the Immigration Reform and Control Act, 79 CHI.-KENTL. REv.
1357 (2004).

208. See Sara Bollerup, America's Scapegoats: The Undocumented Worker and Hoffman
Plastic Compounds Inc. v. National Labor Relations Board, 38 NEw ENG. L. REv. 1009 (2004).

209. See supra note 137 and the accompanying text.
210. S.B.1818, 2001-02 Sess. (Cal. 2002) (codified at CAL. Civ. CODE 3339 (West. Supp.

2003)).
211. CAL. LAB. CODE § 1171.5 (Deering 2004).
212. CAL. GOv'T CODE § 7285 (Deering 2004).
213. CAL. HEALTH AND SAFETY CODE § 24000 (Deering 2004).
214. CAL. CIV. CODE § 3339 (Deering 2004).
215. S.B.1818, 2001-02 Sess.
216. Fairness and Individual Rights Necessary to Ensure a Stronger Society: Civil Rights

Act of 2004, H.R. 3809, 108th Cong. § 702 (2004).

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UNDOCUMENTED WORKER AFTER HOFFMAN

that would not deny backpay remedies to a present or former employee for
either the employer's or employee's failure to comply with the section's
particular requirements or federal law violation related to the established
employee verification system. 217 In its findings, the bill announces numerous
concerns resulting from the court's decision in Hoffman.21 8 In particular, the
bill distinctly notes that the majority in Hoffman made clear that "any
'perceived deficiency in the NLRA's existing remedial arsenal' must be
'addressed by congressional action. ' ' 219 Furthermore, S. 238 1/HR 4262, the
Safe, Orderly, Legal Visas and Enforcement (SOLVE) Act, sponsored by
Senators Kennedy, Clinton and Feingold, and by Representative Gutierrez and
over forty co-sponsors in the House, added to its other immigration proposals
the restoration of labor rights denied in Hoffman.220 Although these bills failed
to be enacted in the 108th Congress and have not been reintroduced, the mere
fact that they were proposed is telling of the viability to legislatively address the
restoration of the labor protections of undocumented workers that the Supreme
Court denied in Hoffman.

Finally, there are two international law approaches that couldaddress the
effects of Hoffman. The first is a human rights approach,22' which may force
the United States to view the dilemma of undocumented workers from a wider
perspective than merely its domestic immigration policy by taking into account
the Universal Declaration of Human Rights and other international human
rights norms. The feasibility of such a proposal is unclear in this era in which
U. S. courts have just begun to apply customary international law in their
decisionmaking. 222 If this era continues, a proposal of this kind may succeed in
the future.

Another international law approach consists of the invocation of
international organizations' oversight functions. In fact, the AFL-CIO filed a
complaint with the International Labor Organization (ILO) in protest of
Hoffman and its limitation of remedies to undocumented workers in the United
States, claiming the decision contravened international treaties on worker's

217. Id.
218. Id. § 701.
219. Id.
220. See Safe, Orderly, Legal Visas and Enforcement (SOLVE) Act of 2004, S. 2381,

108th Cong. § 321(2004); see also, Safe, Orderly, Legal Visas and Enforcement (SOLVE) Act
of 2004, H.R. 4262, 108th Cong. § 321(2004).

221. Neil A. Friedman, A Human Rights Approach to the Labor Rights of Undocumented
Workers, 74 CAL. L. REv. 1715 (1986).

222. See Roper v. Simmons, 125 S. Ct. 1183, 1199 (2005) (citing U.N. Convention on the
Rights of the Child and other international law covenants to forbid execution ofjuveniles under
the Eight Amendment.); but see Beharry v. Reno, 183 F. Supp. 2d 584,595-601 (E.D.N.Y.
2002), rev'd, 329 F.3d 51, 64 (2d Cir. 2003) (reversing on other grounds lower court's decision
that deportable noncitizen should be afforded hearing regarding the right of U.S. citizen child to
be raised with two parents as required by U.N. Convention on the Rights of the Child, the
Universal Declaration of Human Rights and other customary international law.).

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IND. INT'L & COMP. L. REv.

rights.223 In response, the ILO concluded that the available remedies left to the
NLRB were inadequate to ensure the effective protection against anti-union

224discrimination. The ILO did not offer a proposed remedy or sanction, but it• • • 225

asserted that executive and congressional action must address the deficiency.
The Committee's report concludes with a recommendation inviting the

government to explore all possible solutions, including legislative amendments,
in order to ensure the protection of all workers against anti-union discrimination

226
in the wake of the Hoffman decision.

The oversight of the Inter-American Human Rights system is another
action that was undertaken by the Government of Mexico by filing with the
Inter-American Court of Human rights a complaint on behalf of its citizen
workers in the United States. The Court issued its comprehensive advisory
opinion in 2003, where it unequivocally declared that workers should be treated
equally regardless of immigration status.227

In conclusion, the place of the undocumented worker in the United
States' legal realm has moved from deep ambivalence to hostile inconsistency.
Other immigrant-receiving countries, as shown by Argentina's as well as
MERCOSUR's legal regimes, demonstrate that prohibitions on hiring
undocumented workers need not eliminate those workers' labor law
protections. It may serve the United States well to look to the south for some
valuable lessons in how to treat those vulnerable workers in an effort to deter
unauthorized immigration. Even as signs emerge hinting of remedies for
undocumented workers in some areas of labor law protection, the sheer denial
of some rights is certainly cause for concern.

In the three years following Hoffman, the decision has been used by some
to send a message to undocumented workers to be docile and not complain
about their working conditions or else.228 The message of " [k] now your place,
do the work, stay in the shadows, accept what your betters give you and never
think of organizing to challenge the structure which holds you in chains" is still

223. See Reports of the ILO Committee of Freedom of Association No. 329, 331
(LXXXIV, 2003, Series B, No. 2) re: Case No. 2227 (United States) October 18, 2002,
complaint by the AFL-CIO.

224. See Reports of the ILO Committee of Freedom of Association No. 332 (LXXXVI,
2003, Series B, No. 3) May 9, 2003.

225. Id. It should be noted that with regard to its enforcement mechanisms, the ILO's
shortfall has been "its lack of bite." See Phillip Seckman, Invigorating Enforcement
Mechanisms of the International Labor Organization in Pursuit of U.S. Labor Objectives, 32
DENY. J. INT'L L. & POL'Y 675, 697 (2004).

226. See Reports of the ILO Committee of Freedom of Association No. 332 supra note
224.

227. See Sarah Paoletti, Human Rights for all Workers: the Emergence of Protections for
Unauthorized Workers in the Inter-American Human Rights System, 12 HuM. RTS. BRIEF 5
(2004)(discussing Inter-American Court of Human Rights advisory opinion and its critical
guidance with regard to migrant workers.).

228. David Bacon, Supreme Court v. Unions, THE NATION, May 2, 2002, available at
http://www.thenation.corndoc.mhtml?i=20020520&s=bacon) (last visited Dec. 30, 2004).

[Vol. 15.2



20051 UNDOCUMENTED WORKER AFTER HOFFMAN 335

alive and well, albeit with some protections granted erratically to the
undocumented worker in our midst. Simply put, these actions deny the
undocumented workers in our midst of the most basic of their attributes, their
personhood. The denial of the undocumented workers' personhood because
they lack U.S. citizenship should not be part of their existence in our
democratic state as it is not consistent the ideals of freedom and equality that
founded this nation.