This report has been brought by Nicholas Wooldridge – a criminal attorney in Las Vagas. Part I of this Comment will provide a chronological summary of the statutory and case law history that preceded the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. Part II will discuss the Supreme Court’s decision in Hoffman Plastic Compounds, Inc., including a discussion of the prior history of the case. Part III will explore whether the Court’s ruling applies to employers who knowingly hire undocumented workers. Finally, Part IV will discuss the application of Hoffman Plastic Compounds, Inc. under two other important worker protection laws: the Fair Labor Standards Act (“FLSA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). This Comment will conclude that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. is inconsistent with both labor and immigration policy. Therefore, courts should interpret the decision narrowly to limit its potential for harm in the American workplace.
A. Discriminatory Discharge Under the NLRA
Section 8(a)(3) of the National Labor Relations Act (“NLRA”) prohibits “discrimination in regard to . . . tenure of employment . . . to encourage or discourage membership in any labor organization.” The National Labor Relations Board (“NLRB”) is the agency that administers the NLRA. The NLRB’s typical remedy for a discriminatory discharge includes reinstatement of the worker to his former position and reimbursement for the amount that the worker would have earned during the period between the unlawful discharge and the reinstatement. Scholars refer to this reimbursement as “back pay.” The period between an unlawful discharge and reinstatement is the “back pay period.”
B. Sure-Tan, Inc. v. NLRB: Back Pay Predicated on Legal Presence
The Supreme Court addressed the availability of back pay for an undocumented worker under the NLRA in Sure-Tan, Inc. v. NLRB, but circuit courts have disagreed about the scope of the Supreme Court’s holding. In Sure-Tan, Inc., an employer reported to the Immigration and Naturalization Service (“INS”) the presence of illegal aliens in his plant to retaliate against workers who voted to unionize. The INS arrested five undocumented employees but allowed them to leave the country “voluntary” as a substitute for deportation. The employer’s call to the INS constituted a constructive discharge in violation of section 8(a)(3).