By: Dennis Valet
During the Hofstra Labor and Employment Law Journal’s recent Symposium titled “Immigration Law, Practice & Reform,” practicing immigration and labor attorneys were treated with a presentation by Professor Michael J. Wishnie, a renowned labor and immigration lawyer and Clinical Professor at Yale Law School. Professor Wishnie addressed the practical problems stemming from the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. N.L.R.B. According to Wishnie, the Court has effectively established that an undocumented or illegal worker is a statutory employee without many of the traditional labor protections afforded by the National Labor Relations Act (”NLRA”) and National Labor Relations Board (“NLRB”), specifically the right to back pay for work not performed. This is almost exclusively a result of the Court’s decision in Hoffman, where it concluded that when immigration law and labor law clash, immigration law wins.
This conflict climaxes with the exploitation of the illegal immigrant workforce, who without access to proper legal remedies, are reluctant to push for their labor rights. Professor Wishnie looks towards developing lower court decisions to find hope after Hoffman. One encouraging sign is Rivera v. NIBCO, Inc.— a 9th Circuit decision. In Rivera, the Court found that Hoffman did not apply to a Title VII claim because enforcement relies heavily on private causes of action. While it is encouraging that a court has decided that Hoffman does not prohibit the award of backpay to an illegal immigrant in all circumstances, it must be noted that the reason for this has more to do with the differing powers of the courts and the NLRB to mediate conflicts of labor and immigration law than the individual rights of the illegal immigrant. As another example of illegal immigrants receiving backpay for work not performed, Wishnie looks towards various state court splits in regard to workers’ compensation and the eligibility of undocumented workers. If illegal immigrants remain eligible for workers’ compensation, it will be another minor victory in the restoration of labor rights to undocumented workers.
It remains unclear whether illegal immigrants will continue to be excluded from their NLRA rights as directed by Hoffman, or if the Courts will whittle away at those restrictions as they have in Rivera. However, it is certain that dedicated attorneys like Michael Wishnie will continue to be on the forefront of the constantly developing battle between immigration and labor law.
 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).
 Id. at 151-52 ( “We therefore conclude that allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations. However broad the Board’s discretion to fashion remedies when dealing only with the NLRA, it is not so unbounded as to authorize this sort of an award.”).
 Rivera v. NIBCO, Inc., 364 F.3d 1057 (9th Cir. 2004).
 Id. at 1066 (“Given Title VII’s dependence on private enforcement, we find that the national effort to eradicate discrimination in the workplace would be hampered by the discovery practices NIBCO seeks to validate here. We therefore conclude that discovery of each plaintiff’s immigration status constitutes a substantial burden, both on the plaintiffs themselves and on the public interest in enforcing Title VII and FEHA.”).
 See id. at 1067.
 Id. at 1068 (“[U]nder the NLRA, the NLRB may award backpay to workers when it has found that an employer has violated the Act. Under Title VII, a federal court decides whether a statutory violation warrants a backpay award. This difference is significant given that Hoffman held that the NLRB possesses only the discretion to ‘select and fashion remedies for violations of the NLRA,’ and that this discretion, ‘though broad, is not unlimited.’ The Court held that, given the strong policies underlying IRCA and the Board’s limited power to construe statutes outside of its authority, the NLRB’s construction of the NLRA was impermissible. This limitation on the Board’s authority says nothing regarding a federal court’s power to balance IRCA against Title VII if the two statutes conflict. A district court has the very authority to interpret both Title VII and IRCA that the NLRB lacks. Thus, to the extent that Hoffman stands for a limitation on the NLRB’s remedial discretion to interpret statutes other than the NLRA, the decision appears not to be relevant to a Title VII action.”) (citations omitted).
 See National Immigration Law Center, Workplace Rights of Undocumented Workers after the Supreme Court’s Hoffman Plastic Ruling n.14 (2006), available at http://www.nilc.org/immsemplymnt/IWR_Material/Attorney/Issue_Brief_Workplace_Rights_post_Hoffman_3-06.pdf.