To Be or Not to Be an Employee: Illegal Immigrants are the Question

By: Jonathan Sturm

Currently, illegal immigrants are a hot topic in the news and questions arise as to what rights they retain in the workplace. According to the Federation for American Immigration Reform, as of 2005, about 10-12 million illegal immigrants reside in the United States.[1]  Many of these illegal immigrants enter the workforce, attempting to retain many of the same rights as legal workers.[2]

The National Labor Relations Act (NLRA) defines “employee” broadly, as any employee, thereafter listing the exceptions. [3] Undocumented illegal workers are not found within the exceptions. [4]   The Supreme Court, in Sure-Tan v. NLRB, held that illegal immigrants clearly fell within the definition of an employee because “undocumented aliens are not among the few groups of workers expressly exempted by Congress…”[5]  It could be asserted that illegal immigrants should be deemed as falling within the NLRA definition of employees for humanitarian reasons.  This is not so.   Rather, undocumented workers should be considered employees for the sake of the regular legal working class.[6] If illegal immigrants were not considered employees and not considered part of the bargaining force under the NLRA there would be a lack of unity of all workers causing an impediment in effective collective bargaining for the rest of the workforce.[7]

Tension arises in the legislation addressed to employment and immigration.  Even though illegal immigrants are considered employees for NLRA purposes, under the Immigration Reform and Control Act (IRCA), it is illegal for an employer to hire undocumented workers.[8] The District of Columbia Court of Appeals eased this tension in Agri Processor Co., Inc v. NLRB. The Court reasoned that IRCA never explicitly stated that illegal immigrants were not employees under the NLRA.[9] The Court opined that in IRCA, Congress never indicated a desire to amend the NLRA.[10]  A statute may override another statute, in limited situations and only when “the latter expressly contradicts the original act.”[11]  IRCA never expressly contradicted the NLRA nor did it present any indication of intent to limit the NLRA definition of employee.[12]   Accordingly, under IRCA it is illegal for an employer to hire an undocumented worker. However, once an undocumented alien is hired, that undocumented worker retains the same rights as an employee under the NLRA. This must be the case to maintain a unity among all the members of the bargaining unit.  The concept of collective bargaining requires a unity of interest among the employees.

While the tension between the two laws appeared to have been lessened, the Supreme Court complicated matters, ruling that an employer who violated the NLRA by unlawfully terminating an illegal immigrant employee was not obligated to provide that individual with a traditional reinstatement remedy.[13] In Hoffman Plastic Compounds v. NLRB, the Supreme Court held that an employer did not have to award back pay to an undocumented worker who had presented fraudulent working documents to his employer, because under IRCA the illegal immigrant was never legally authorized to work.[14] The Court reasoned that in the past the National Labor Relations Board (NLRB) never awarded back pay to employees found guilty of an illegal act[15] and doing so would encourage illegal conduct.[16] Recently the NLRB upheld the Hoffman decision in a case where the employer knowingly hired illegal immigrants.[17]

Both the Hoffman and recent NLRB decisions show that in some instances undocumented workers do not retain the same rights as employees do under the NLRA. Illegal aliens are only protected as employees during employment, and not protected from the possible harsh consequences of an adequate legal remedy when they are the victims of unlawful terminations for NLRA protected conduct. There seems to be an unbalanced degree of punishment for a two way illegal act. If the government does not want to enforce back pay awards for illegal immigrants then it should make a stronger effort in preventing employers from hiring undocumented employees.  If the underpinnings of the NLRA are to be strengthened, the illegal worker must be provided with the full panoply of NLRA remedies.  The tension remains.

[1]  What’s Wrong with Illegal Immigration?, Federation for American Immigration Reform (March 2005),

[2] See Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-92 (1984).

[3] National Labor Relations Act, 29 U.S.C. § 152(3).

[4]  Id.

[5] Sure-Tan, Inc., 467 U.S. at 891-92.

[6] See Agri Processor Co. v. NLRB, 514 F.3d 1, 8 (D.C. Cir. 2008).

[7] See Sure-tan, Inc., 467 U.S. at 891.

[8] Immigration Reform and Control Act, 8 U.S.C. § 1324(a).

[9] Agri Processor Co., Inc., 514 F.3d at 3-4.

[10] Id at 5.

[11] Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 646 (2007)

[12] Agri Processor Co., 514 F.3d at 4.

[13] See Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002).

[14] Id.

[15] Id at 143.

[16] Id at 150.

[17] See Mezonos Maven Bakery, Inc., 357 NLRB No. 47 (2011).

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