Employers Test Ruling on Immigrants

Employers across the nation are testing the limits of a recent Supreme Court decision to deny back pay to an undocumented worker, seeking to use the ruling to avoid minimum wage and workers’ compensation awards, even asking for the documents of a worker who complained of sexual harassment, according to advocates for low-wage workers.

The swift employer response, along with widespread misunderstanding of the court’s intent, has heightened a sense of distress building in immigrant communities through months of recession and the war on terrorism, the advocates said.

“Everyone is reeling from this,” said Della Bahan, a Pasadena attorney representing immigrant janitors in a class-action lawsuit alleging wage and hour violations. “It’s created a lot of confusion and a lot of fear. However it’s ultimately interpreted, the overall message is, ‘You complain at your peril.’”

On March 27, the high court ruled 5 to 4 that because he was undocumented, a worker at a chemical plant in Paramount could not collect thousands of dollars in back pay after he was illegally fired for union-organizing activities. The court determined that the worker’s violation of immigration law overrode the employer’s violation of labor laws.

In the written decision and during oral arguments, the majority made clear they did not intend to abolish all workplace rights for illegal immigrants. However, dissenters on the court, along with labor unions, immigrant-rights groups and a coalition of business groups that filed briefs on behalf of the worker, argued that such a ruling would increase exploitation by unscrupulous employers.

Some say that already has happened.

“It’s amazing, the quickness of the employer response to this,” said Ana Avendano Denier, an attorney with the United Food and Commercial Workers Union, which represents thousands of immigrant workers in meat and poultry plants. “Some are intentionally reading it too broadly, but there’s also a lot of misunderstanding about what the court said.”

In recent weeks, she said, a worker filing a sexual harassment complaint at a Kentucky poultry plant was allegedly asked for her immigration documents, as was a meatpacking worker in Nebraska who filed a workers’ compensation claim after a 30-foot fall. Because both cases are being handled through the union grievance process, Denier said she could not supply the names of the employers.

In New York, the owner of a Manhattan meat market who is accused of paying his immigrant work force less than the minimum wage warned an advocacy group not to demonstrate in front of his store.

“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,” the owner’s attorney, Frederick Margolin, told the group in a letter.

In an interview last week, Margolin said he believed that a worker fired from the market was not entitled to the difference between his wages over five years and the minimum wage because “that’s back pay.” He added that the employer probably knew the worker was undocumented because “that’s true of maybe 75% of the employees in the area.”

A Los Angeles jewelry manufacturer questioned an employee about her immigration status during a workers’ compensation hearing this month and fired her after learning she was undocumented, according to a union representative at the hearing.

Felipe Aguirre, a local organizer for the International Union of Electricians-Communication Workers of America, said the employer, Quadrtech Manufacturing, also cited the Supreme Court’s ruling when it canceled a proposed out-of-court settlement with employees who were fired during a union-organizing campaign.

A Quadrtech attorney did not return calls seeking comment.

It probably will be years before the ruling is fully interpreted by lower courts, attorneys said, although judges in state and federal court--both in California--already have taken a narrow view of the decision.

In Los Angeles, a U.S. District Court judge decided the immigrant status of supermarket janitors was not relevant in a class-action suit that seeks to collect minimum wages for years of work. And a San Diego Superior Court judge decided a taco stand worker who was paid $2 an hour for seven years was entitled to $32,000 for missing minimum wage. In both cases, employers had unsuccessfully cited the Supreme Court decision.

In the meantime, federal and state agencies are struggling to understand how the decision affects their ability to protect undocumented workers, if at all.

For years, state and federal agencies have wrestled with the sometimes conflicting goals of protecting workers while ensuring a legal work force. This is particularly tricky when an undocumented worker is fired illegally in retaliation for asserting rights on the job. Typically, employers in such cases are ordered to reinstate the worker and provide back pay for the time not worked. But if the employee is undocumented, an order of reinstatement essentially forces the employer to break the law.

In the late 1990s, as more such cases surfaced, federal agencies including the National Labor Relations Board and the Equal Employment Opportunity Commission adopted a policy that seemed to resolve the dilemma: Illegal immigrant workers would not be reinstated but would receive back pay from the time they were fired to the point at which employers learned of the employees’ illegal status.

The case that reached the Supreme Court was unusual because the employer did not learn of the worker’s illegal status until years into the dispute.

It was 1989 when the worker, known as Jose Castro, was fired from his job at Hoffman Plastic Compounds Inc. After years of hearings and appeals, Castro admitted he used false documents to obtain his job. By then, the wages and penalties amounted to $67,000.

“Allowing the Board to award back pay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy,” wrote Chief Justice William H. Rehnquist. “It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.”

The Labor Department this week insisted that wage, hour and safety regulations would be enforced “vigorously” for all workers, regardless of immigration status. Yet the statement, issued in Washington and Mexico City, failed to address the question of what remedies undocumented workers have if they are fired for asserting those protections.

A spokeswoman said Labor Department attorneys could only say they “intend to protect employees from retaliatory discharge to the extent possible.” A similarly guarded statement was issued by the NLRB, which said it will soon “be issuing guidance to the Agency’s field offices regarding how to handle legal and investigative issues arising from the Hoffman decision.”

In California, the labor commissioner’s office said it would continue to investigate claims without regard to immigration status. However, commission attorney Miles Locker noted if employers raise the question of an employee’s legal standing, it could affect the state’s ability to collect back pay in certain cases.

More troubling, said worker advocates, is the widespread belief among illegal immigrants that they no longer are protected under state and federal labor laws, which has discouraged them from filing complaints.

“We’ve been getting a lot of panicky phone calls,” said Liz Sunwoo, an outreach worker with the Korean Immigrant Workers Assn. “They’re afraid if they step forward now, they’ll be fired.”

That misunderstanding also has led many to drop contract grievances and walk away from union-organizing campaigns, which increasingly are targeting immigrant workers, said several union activists. Yet several organizers in heavily immigrant industries said the undocumented have long understood they take greater risks when asserting their rights.

“We don’t see it affecting our organizing efforts,” said Mike Garcia, president of Service Employees International Union Local 1877, a statewide janitors’ organization based in Los Angeles. “There are very few instances where we’ve won back pay awards anyway.... What’s more concerning to us is the overall increase of immigrant hysteria that seems to be developing in this country.”

Dionisio Gonzalez, an organizer with the United Steelworkers Union who filed the original case against Hoffman in 1989, said the ruling undoubtedly will make it harder to persuade workers to join a union, which he said could affect all workers regardless of status.

“It makes it real difficult to convince someone to sign a union card,” Gonzalez said. “At Hoffman, I told them they were protected under the law. I guess I was wrong.”