Early reports indicate that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. may have worsened these workers’ plight and encouraged employers to test the decision’s limits. Even if courts interpret Hoffman Plastic Compounds, Inc. narrowly, as only precluding back pay where an unknowing employer hired an undocumented worker and later illegally discharged him for his union activity, the decision may impair the legal rights of both legally authorized and undocumented workers. Hoffman Plastic Compounds, Inc. may give employers an incentive to hire such workers because they are exploitable, and it may encourage exploitation by lowering its cost.

Further, legally authorized workers may have much more difficulty accessing their legal right to choose union representation. Employees without significant protection from unlawful discharge on the basis of their union activity are not likely to elect union representation because they do not have a “comparable stake in the collective goals of their legally resident co-workers.” Additionally, the presence of workers who cannot assert their rights under the NLRA because they justifiably fear discharge may damage the solidarity required for effective collective bargaining in workplaces already represented by a union.

Lower courts have not extended the holding of Hoffman Plastic Compounds, Inc. to cases brought under the FLSA. A FLSA claim for unpaid wages is distinguishable from a NLRA charge for discriminatory discharge because the FLSA claim for underpaid wages seeks compensation for work already performed. Even where a FLSA claimant seeks a remedy for retaliatory discharge, courts have a greater variety of remedial options than the NLRB does when remedying an unlawful discharge violation and may award punitive damages in certain circumstances. Although employers have argued that Hoffman Plastic Compounds, Inc. extends to FLSA cases, it appears unlikely that this argument will succeed.

Courts are more likely to extend Hoffman Plastic Compounds, Inc. to cases brought under Title VII because the NLRA and Title VII similarly compensate the unlawfully discharged employee for work that he did not actually perform. However, the Supreme Court stressed that the NLRA still protected undocumented workers in Hoffman Plastic Compounds, Inc. and that the Supreme Court was only prohibiting a particular remedy: back pay. Thus, the wider array of remedial measures that courts can grant under Title VII would arguably still be available to undocumented workers, even after Hoffman Plastic Compounds, Inc.


Even if courts interpret Hoffman Plastic Compounds, Inc. narrowly, the decision effectively rewards employers who hire workers that they suspect have falsified documents by allowing these employers to flout NLRA protections without sanction. By allowing employers such an easy way to violate labor laws, the decision undermines the ability of legally authorized workers to form labor unions and collectively bargain. The decision encourages the exploitation of the most vulnerable members of society and undermines the rights of legally authorized workers as well.

Courts should distinguish Hoffman Plastic Compounds, Inc. in cases that involve federal worker protection statutes other than the NLRA because disparate application of these laws would similarly encourage employers to hire and exploit undocumented workers. A workplace culture that tolerates employment discrimination, or the payment of substandard wages with respect to one subset of workers, may negatively impact other workers as well.

Additionally, courts that expand the holding of Hoffman Plastic Compounds, Inc. to preclude back pay in the case of a knowing employer would frustrate immigration policy by rewarding employers who violate the IRCA with labor law immunity. The NLRB should award back pay that terminates either upon the employee’s reinstatement (if the employee successfully obtains a green card) or after a reasonable time (if the employee has difficulty obtaining a green card). This policy is consistent with both the NLRA and the IRCA because it uniformly imposes labor law liability on employers who knowingly hire undocumented workers, while not requiring these employers to reinstate unlawfully discharged employees who cannot obtain authorization to work. Such a policy would respect current immigration policy while limiting the damaging potential of the Supreme Court’s decision in Hoffman Plastic Compounds, Inc.