Five Years Later: Navigating The Legal Battlefield Of IRCA And Undocumented Workers' Remedies After Hoffman

by William J. Simmons

The Immigration Reform and Control Act of 1986 ("IRCA")[1] made it illegal for employers to hire undocumented immigrants knowingly.[2]  IRCA also created a mandatory employment verification system, resulting in the current I-9 form, for employers to screen potential employees for their eligibility to work.[3]  Further, IRCA criminalized an undocumented immigrant’s submission of fraudulent employment verification documents, such as resident alien cards or social security cards, to employers.[4]  An employer must terminate an immigrant worker if, after good faith compliance with the employment verification requirements, the employer later learns that the worker is undocumented.[5]  Thus, under IRCA, "it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies.  Either the undocumented alien tenders fraudulent identification . . . or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations."[6]

Yet IRCA has not stopped the employment of undocumented workers.[7]  Research suggests that as of 2006 there were approximately seven million undocumented workers in the United States, comprising about five percent of the United States workforce.[8]  Approximately 68% of undocumented immigrants reside, and thus presumably work, in eight states: California, Texas, Florida, New York, Arizona, Illinois, New Jersey, and North Carolina.[9]  Just like other workers in the United States, these undocumented workers can be injured on the job, subject to unfair labor practices, or claim discrimination or wrongful termination.  Although many undocumented workers may fear complaining to, let alone suing, an employer,[10] some have.  When undocumented workers sue an employer, courts must determine what remedies, if any, are available to the worker, given that IRCA should have prevented the employment in the first place and, if obeyed, should prevent the worker from future United States employment.

In what has become a seminal case, the United States Supreme Court in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board,[11] held in 2002 that the National Labor Relations Board ("NLRB") could not award backpay to "an undocumented alien who has never been legally authorized to work in the United States," because "such relief is foreclosed by federal immigration policy, as expressed by Congress in [IRCA]."[12]  In the five years since that holding, courts, litigants, and administrative agencies have struggled to determine its significance for employers and other undocumented plaintiffs under the National Labor Relations Act,[13] other federal laws such as Title VII[14] and the Fair Labor Standards Act,[15] and even state tort and wage-hour laws.  This article will first undertake a detailed textual analysis of the tangled web that is Hoffman, demonstrating how both the facts and the Court’s language in that case have caused the confusion that exists today surrounding legal remedies available to undocumented workers.  Then the article will survey recent cases involving this issue to provide guidance to practitioners navigating the legal battlefield of undocumented workers’ rights and remedies after Hoffman.  The unique prospective provided by five years of jurisprudence since Hoffman shows that there is some "safe" common ground on four core issues: undocumented workers’ standing to sue, compensation for work already performed, reinstatement, and discovery related to immigration status.  Where there is not common ground, very recent cases have provided support for a theory that the cases can be divided—more or less—into two analytical camps, each deriving support from Hoffman: what I will call the "wrongdoer-centric" cases[16] and the "bright line" cases.[17]  Understanding the two fundamental approaches will hopefully assist practitioners in determining which cases and arguments provide the best support for their clients, and provide an analytical framework for judges yet to consider issues of undocumented worker remedies.[18]

I.  Hoffman: It Giveth and It Taketh Away

Hoffman involved an undocumented worker employed at a chemical manufacturing plant.[19]  The employer followed IRCA’s employment eligibility verification requirements, but the worker tendered a fraudulent birth certificate in order to obtain work.[20]  Later, a union began an organizing campaign at the manufacturing plant.[21]  The undocumented worker and several other employees assisted with the organizing campaign and distributed authorization cards for the union to other employees.[22]  The employer fired the undocumented worker and other employees as a result.[23]  The union filed a complaint with the NLRB, which ultimately determined that the employer had violated the National Labor Relations Act by terminating the employees.[24]  The NLRB ordered that the employer "cease and desist" from other unfair labor practices, post a notice to employees regarding the NLRB’s order, and to offer reinstatement and backpay to the terminated employees.[25]  At a subsequent hearing to determine the backpay award amount, the undocumented worker admitted that he was never lawfully admitted into the United States and was not legally authorized to work.[26]  The NLRB still ultimately awarded backpay to the undocumented worker, although it limited the amount of backpay and did not order his reinstatement due to IRCA.[27] 

Chief Justice Rehnquist, writing for a 5-4 majority, states Hoffman’s holding in at least two places in the opinion.  The first statement of the holding is in the first paragraph of the opinion:  "The National Labor Relations Board (Board) awarded backpay to an undocumented alien who has never been legally authorized to work in the United States. We hold that such relief is foreclosed by federal immigration policy, as expressed by Congress in [IRCA]."[28]  The second clear statement of the holding in the case is:

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.[29]

When viewed against each other, these two statements of Hoffman’s holding seem quite consistent and easy to understand: federal immigration policy prevents the NLRB from awarding backpay to an undocumented worker.  The problem, however, is that these two statements of the holding essentially book-end a complex, sometimes seemingly contradictory, discussion of the reasoning for the holding.  Thus, even five years after Hoffman, courts and litigants continue to struggle with how to apply Hoffman and whether to extend the Court’s reasoning to other analogous cases involving undocumented worker plaintiffs.

The first portion of Hoffman discusses the "decisional background" the Court determines is relevant to the NLRB’s award of backpay in the case,[30] stating that the case "exemplifies the principle that the [NLRB]'s discretion to select and fashion remedies for violations of the NLRA, though generally broad . . .  is not unlimited."[31]  The Court discusses several cases where the Court has "set aside awards of reinstatement or backpay to employees found guilty of serious illegal conduct in connection with their employment."[32]  The Court even distinguishes a case the NLRB cited for the proposition that backpay can be awarded to employees who violate federal law.[33]  Interestingly, the Court distinguishes the case in three ways:

First, we expressly did not address whether the Board could award backpay to an employee who engaged in "serious misconduct" unrelated to internal Board proceedings . . . such as threatening to kill a supervisor . . . or stealing from an employer. . . Second, the challenged order did not implicate federal statutes or policies administered by other federal agencies, a "most delicate area" in which the Board must be "particularly careful in its choice of remedy." . . . Third, the employee misconduct at issue, though serious, was not at all analogous to misconduct that renders an underlying employment relationship illegal under explicit provisions of federal law.[34]

Essentially between the Court’s discussions of these employee misconduct cases, the Court cites several cases, "[s]ince Southern S. S. Co."[35] where apparently no employee misconduct was at issue, but still the Court did not "defer[ ] to the Board's remedial preferences where such preferences potentially trench[ed] upon federal statutes and policies unrelated to the NLRA," including conflicts with bankruptcy law, antitrust law, and the Interstate Commerce Act.[36] 

Thus it is unclear exactly what the Court means when it states that "we believe the present case is controlled by the Southern S. S. Co. line of cases, rather than by ABF Freight."[37] The Court could mean that the decisional background indicates primarily that serious employee misconduct may bar certain NLRB remedies, or instead that the cases should be taken for the general proposition that the NLRB does not have unfettered discretion on remedies where there is a conflict between the remedies available under National Labor Relations Act and other federal laws.  The answer seems clear a few paragraphs later: "The Southern S. S. Co. line of cases established that where the Board's chosen remedy trenches upon a federal statute or policy outside the Board's competence to administer, the Board's remedy may be required to yield."[38]  It would appear, then, that the Court interpreted the employee misconduct cases as a subset of those cases where the Court did not defer to the NLRB’s choice of remedies when other laws were involved.  This language is consistent with the two explicit statements of the holding of Hoffman, quoted earlier, which do not mention the undocumented worker’s fraud.  Unfortunately, however, the Court continues to pepper language of the employee’s fraud throughout the opinion,[39] despite that it would seem the employee’s fraud per se was not truly material to the holding of the case. 

It is important to note too that the NLRB had already limited the backpay award to the period between the termination and the date the employer learned of the worker’s undocumented status.[40]  Thus, the NLRB contended that the award did not directly conflict with IRCA because IRCA would only require the worker’s termination once the good faith employer learned of the worker’s status.  Still, the Court found that immigration law policy in general would conflict with the backpay award.  Indeed, the Court indicates several ways immigration law policy, not just specific sections of IRCA, conflicts with the backpay remedy without regard to whether an undocumented worker actually submitted fraudulent documents to his employer, or whether the backpay award was limited to the period before required termination.  The Court states:

awarding backpay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations. The Board admits that had the INS detained Castro, or had Castro obeyed the law and departed to Mexico, Castro would have lost his right to backpay. . . Castro thus qualifies for the Board's award only by remaining inside the United States illegally. . . Similarly, Castro cannot mitigate damages, a duty our cases require . . . without triggering new IRCA violations, either by tendering false documents to employers or by finding employers willing to ignore IRCA and hire illegal workers. The Board here has failed to even consider this tension.[41]

Therefore, according to the Court, a backpay award would be impermissible because it would "encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations."[42]

Still, it can seem as though every court to address remedies available to undocumented workers over the past five years has done so with a unique view of Hoffman.[43]  Perhaps this is because Hoffman constantly confused and intermingled the facts of the undocumented worker’s fraud with the broader reasoning of immigration law’s (perceived) conflict with the backpay remedy, and did not clearly state the material facts to its holding.  Hoffman, narrowly construed, also dealt with the power of a particular federal agency to enforce a particular federal law.  The Court made no attempt to clarify whether its reasoning should be applied to courts enforcing federal laws, whether the reasoning should be applied to other federal laws, or whether its reasoning should be applied to potential conflicts with state laws.  Thus courts have struggled over the past five years with whether and how far to extend Hoffman to analogous cases, as litigants on both sides have jockeyed for position in this legal battlefield.  Fortunately, however, since Hoffman courts have reached consistent results on some underlying issues concerning undocumented workers and their employers.   

II.  Some Clarity in the Aftermath

1. Undocumented Workers Entitled To Sue Employers

First, it is relatively clear that Hoffman does not bar undocumented workers from all relief, nor does it deprive undocumented workers the right to sue employers.[44]  A National Labor Relations Board general counsel memorandum stated as much just a few months after Hoffman: "The Hoffman Court reaffirmed its prior holding . . . that undocumented aliens are employees under the National Labor Relations Act.  Accordingly, it is unassailable that all statutory employees, including undocumented workers, enjoy protections from unfair labor practices and the right to vote in NLRB elections without regard to their immigration status."[45]  Similarly, the Equal Employment Opportunity Commission issued a news release shortly after the decision reaffirming its commitment to protect undocumented workers against discrimination.  It stated Hoffman merely "affect[ed] the availability of some forms of relief to undocumented workers."[46] 

Courts, too, have consistently rejected employers’ claims that Hoffman precludes undocumented workers from all recovery or denies them legal standing for all purposes.  For instance, in Singh v. Jutla & C.D. & R’s Oil, Inc.,[47] the undocumented worker plaintiff claimed that the employer had retaliated against him for filing an FLSA claim by reporting him to the INS.[48]  The employer filed a motion to dismiss on the premise that Hoffman barred the cause of action.[49]  The employer argued that Hoffman "should be read to indicate that undocumented workers are not entitled to a wider array of remedies under the national labor laws," likening "other forms of relief to backpay, thereby extending Hoffman so that an undocumented worker is precluded from bringing a claim under the FLSA's anti-retaliation provisions."[50]  The court disagreed and held that "though Hoffman prevents an undocumented worker from seeking backpay, it does not preclude an undocumented worker from seeking any form of relief, as shown through the Court's granting of both injunctive and declaratory relief."[51]  The court thus sustained the worker’s cause of action.[52]  Similarly, Escobar v. Spartan Security Service rejected an employer’s claim that Hoffman should be read to deny undocumented workers Title VII protections.[53]  In another example, Zavala v. Wal-Mart Stores, Inc. rejected the employer’s claim that undocumented workers were not entitled to relief under the Fair Labor Standards Act pursuant to Hoffman.[54]  The court noted that the plaintiffs sought compensation for work already performed rather than work not performed, and stated that it "join[ed] the growing chorus acknowledging the right of undocumented workers to seek relief for work already performed under the FLSA."[55]  The Second Circuit has upheld an undocumented worker’s personal injury suit against his employer,[56] and workers have also been held to have standing to sue under the Migrant and Seasonal Agricultural Worker Protection Act.[57]  A California state appeals court recently upheld undocumented workers’ suits for unpaid wages pursuant to state wage-hour law as well.[58]

The corollary, however, is that courts have extended Hoffman beyond the NLRB’s enforcement of the National Labor Relations Act.[59]  Hoffman may thus apply to limit some of the remedies available to undocumented workers in suits pursuant to the Fair Labor Standards Act,[60] Title VII,[61] the Americans with Disabilities Act, Age Discrimination in Employment Act and state tort and wage-hour laws.[62]  Moreover, where an undocumented worker sues his employer and claims only wrongful termination, the court may deny him all private remedies pursuant to Hoffman and IRCA.  For instance, the New Jersey Appellate Division in Crespo v. Evergo Corporation held that IRCA and Hoffman barred an undocumented worker from receiving any damages whatsoever (economic or non-economic) in a New Jersey Law Against Discrimination pregnancy leave-based wrongful termination claim.[63]  The court stressed that the undocumented worker claimed only that the employer did not allow her to return to work after her maternity leave.[64]  The employer did not discover the undocumented worker’s status until the complaint in the case was filed,[65] so the worker’s immigration status was unrelated to the termination.  Still, after surveying Hoffman, IRCA, and prior New Jersey precedent in non-immigration related areas, the court reasoned that "it is the illegality of plaintiff's employment which precludes both economic and non-economic damages she claims resulted from the termination of that employment."[66]  The court hinted, however, that undocumented immigrants may still be able to recover damages in cases involving wrongs other than wrongful termination, such as workplace harassment.[67] 

In contrast to Crespo, one California federal district court has held that even if an employer fires an undocumented worker in accord with IRCA, the employer may still have to pay damages to the worker under state law if the employer actually was motivated by discriminatory purposes rather than IRCA.[68]  The court determined that this would still not violate IRCA, because "the employer can obey both laws by terminating the employee, as required by federal law, and, where the motive for the termination is contrary to state law, paying damages, as required by such law."[69]  This decision is highly questionable, however, because certainly some courts would hold that fear of state law damages and discrimination suits would provide an incentive to employers not to obey IRCA’s mandate to terminate undocumented workers upon learning of their status.  On review, the Ninth Circuit stated that it "need not reach the question decided by the district court."[70]  The Ninth Circuit noted instead that the employer treated the worker differently than another worker in the same exact situation at the same time, firing him instead of granting him an unpaid leave of absence to rectify temporary visa problems as it did with the other employee.[71]  The employer’s conduct thus showed that it did not have to terminate plaintiff to comply with IRCA, therefore providing a basis for the worker’s discrimination claim and damages under state employment law without conflict with IRCA.[72]

Thus, given this case history, advocates for undocumented workers should feel confident that the worker generally will have standing to sue, and employers should focus their efforts elsewhere in legal arguments to the court.

2. Courts Generally Allow Compensation for Work Already Performed

Second, in numerous cases involving the Fair Labor Standards Act, state wage-hour laws, and even Title VII, courts have allowed undocumented workers to recover compensatory damages for work they have already performed. [73]  The issue usually arises because the employer has hired an undocumented worker but not paid the worker the prevailing minimum wage, and/or has not paid the worker proper overtime for work performed.  It can also arise, however, in a Title VII claim that an employer discriminated against an undocumented worker of a protected class by paying him less than other similarly situated employees.[74]  These cases derive support from language in Hoffman that the NLRB could not make an award for "years of work not performed,"[75] while the court was silent on remedies for work already performed.[76]  

Moreover, courts conclude that Hoffman and IRCA do not bar recovery for work already performed because (1) the remedy does not presume or require future violations of IRCA[77] and (2) barring recovery would provide employers with a perverse economic incentive to violate IRCA.[78]  That is, if employers know that they do not have to pay undocumented workers for work not performed, and also need not fear suits for proper wages for work already performed, employers may determine that the economic benefits of hiring undocumented workers far outweighs any risk.[79]   

Even if a worker has secured employment by submitting fraudulent documents to the employer, a court may still allow compensatory damages for work already performed. In Pineda v. Keltech Construction, Inc.,[80] undocumented construction workers sued their employer, a general contractor, for unpaid wages and benefits pursuant to the New York labor law.[81]  The employer moved for summary judgment, arguing that the cause of action should be barred because the workers had submitted fraudulent identification documents to the employer to obtain employment.  The court held that even if the workers had committed fraud on their employer to obtain employment, and therefore had violated IRCA, the workers would still be allowed to pursue their claim for wages for work they had already performed.[82]  The court stated that it "prefer[ed] to extrapolate from federal and New York state public policy a basis for undocumented workers to claim unpaid wages for work they have already performed, even if like plaintiffs here they allegedly proffered fraudulent documents to obtain employment."[83]  The court reasoned that even when undocumented workers have provided fraudulent documents, "public policy requires payment so that employers do not intentionally hire undocumented workers for the express purpose of citing the workers' undocumented status or their use of fraudulent documents as a way to avoid payment of wages."[84]  However, the significance of these statements is unclear because the court also denied summary judgment due to material issues of fact as to whether it was the workers or actually the employer who had violated IRCA by failing to request proper documentation when the workers were hired.[85]

Undocumented workers may also receive statutory penalty damages in addition to compensatory damages as a result of the employer’s failure to pay contracted-for wages for work performed.  In Coma Corp. v. Kansas Department of Labor,[86] an undocumented worker who was terminated after having been employed as a cook sued his former employer for unpaid wages.[87]  The worker claimed that the employer had agreed to pay him six dollars per hour, that he had worked 50-60 hours per week during his employment, and that the employer had only paid him about $60 per week.[88]   The employer claimed that the alleged contract was illegal and unenforceable pursuant to IRCA and Hoffman.[89]  Kansas statutory wage-hour law allowed an award of penalty damages in addition to compensatory damages, when the employer "willfully" failed to pay appropriate wages to an employee, "in the amount of 1% of the unpaid wages for every day they are not paid, up to a total of 100%."[90]  The Kansas Department of Labor hearing officer awarded the worker unpaid wages at the rate of the oral contract as well as maximum penalty damages.  The lower court, reviewing the hearing officer’s decision, held that the worker could only recover the applicable minimum wage for hours that he had worked, rather than the higher six dollars per hour rate, because the employment contract was illegal.[91]  The lower court also reversed the statutory penalty award, holding that federal immigration policy would bar the award.[92]  The lower court had reasoned that "the award of the statute of the statutory penalty to an illegal alien tips the scale too much towards providing an incentive to illegal aliens to work in the United States and ‘trivializes' the IRCA."[93]  The Kansas Supreme Court reversed the lower court’s decision and held that the undocumented worker was entitled to unpaid wages at the rate set by the oral contract as well as full statutory penalty damages, equal to the amount of unpaid wages.[94]  The court held that IRCA did not preempt Kansas wage-hour law, and that "to deny or to dilute an action for wages earned but not paid on the ground that such employment contracts are ‘illegal,’ would thus directly contravene the public policy of the State of Kansas" of protecting wage-earners.[95]

Therefore, the categorical rejection of the theory over the past five years that Hoffman bars proper compensation for work an undocumented worker has already performed makes it essentially a waste of an employer’s time and money to argue the theory hereafter, absent perhaps waiver arguments when a worker has committed fraud, or arguments about statutory penalty damages, as these cases are only just beginning to be litigated.

3. Reinstatement Remedy Unavailable to Undocumented Workers

Third, it is also clear that courts will not order undocumented workers reinstated due to IRCA and Hoffman.  As the Second Circuit in Madeira v. Affordable Housing Foundation, Inc. stated:

On the far end of remedies in plain conflict with federal immigration policy are orders directing employers who have violated some other law to reinstate undocumented workers.  In such circumstances, the conflict with federal immigration law is both direct and positive because compliance with the remedial order requires the employer to violate IRCA.[96]

In fact, Hoffman noted that IRCA effectively requires an employer to terminate an employee upon learning that he or she is an undocumented worker.[97]  Thus reinstatement of that same worker would be out of the question.   

The sole possible exception to this rule is that if a worker was undocumented at the time of employment, but has since achieved legal status in the United States, he may be eligible for the reinstatement remedy.  The NLRB issued a general counsel memorandum stating that Hoffman does not bar the NLRB "from imposing a conditional reinstatement order against employers who flout both the Act and IRCA by hiring . . . known undocumented workers.  Because the employee must comply with IRCA prior to reinstatement, a conditional order satisfies the Court's concern that the Act not conflict with IRCA's extensive employment verification system."[98]   Without explanation, though, the memorandum mandates that where the employer did not know of the worker’s undocumented status and can show that it would not have retained the employee if it did know, the NLRB should not seek conditional reinstatement.[99]  Only one federal court appears to have addressed this issue directly since Hoffman, and that court did so rather cursorily.  A district court in Texas refused to grant an employer’s summary judgment motion on front pay and reinstatement remedies in an undocumented workers’ Title VII sexual harassment claim, where the worker had achieved legal status since his termination.[100]  The court stated that because the plaintiff was "now a documented worker, authorized to work in the United States . . . the rationale for extending both Hoffman and Egbuna to foreclose all the remedies claimed by [him] is not applicable in this case."[101]  The worker was allowed then, to pursue reinstatement as a possible remedy in his Title VII claim.[102]

            This possible exception to the general no-reinstatement rule has not been sufficiently litigated to provide sure guidance for practitioners.  On one hand, a court would not actually force an employer to violate IRCA if it ordered the employer to hire a worker who presently has legal status to work.  In addition, the reinstatement of the worker would not encourage future violations of immigration laws because the worker would now be following those laws.  On the other hand, the reinstatement remedy suggests that the employment relationship should have continued in the first place but for the employer’s misconduct.  This is not the case, however, where the worker submitted fraudulent documents to his or her IRCA-complying employer.  Then the employment relationship should not have begun, let alone continued.  A reinstatement award on those facts seems to contradict the spirit of IRCA by suggesting that the undocumented worker’s recent compliance with immigration law means that he was entitled to keep working at the time of termination, even though in fact he was not.  When faced with a case involving a formerly undocumented worker, then, advocates for both the worker and employer must contemplate reinstatement as a possible remedy.  Where the worker remains undocumented, however, it is clear that courts will not order reinstatement.

4. Courts Reluctant to Grant Broad Discovery on Workers’ Immigration Status

Fourth and finally, courts have been reluctant, even after Hoffman, to grant employers’ broad requests for discovery into the immigration status of plaintiff employees.[103]  Courts are concerned about the chilling effect of the discovery on suits by undocumented workers and the leverage that employers may get from the discovery.[104]  This is the case even when employers claim that evidence of a worker’s submission of fraudulent documents to the employer would be relevant for impeachment purposes at trial.  A case recently decided in the Southern District of New York provides an example.  In Avila-Blum v. Casa de Cambio Delgado, Inc.,[105] a worker filed a discrimination suit against his employer.  The employer sought discovery into the workers’ immigration status and falsification of employment verification documents.[106]  A magistrate judge granted a protective order barring discovery into the immigration status of the plaintiff, at least until the damages phase of the case, and the district court affirmed.[107]  The court reasoned that:

While the issue of immigration status may be relevant to damages insofar as it may limit the availability of certain forms of damages, Defendants have pointed to nothing other than the issue of credibility during the liability phase to which this inquiry is relevant. As set forth above, that a party's credibility is at issue does not by itself warrant unlimited inquiry into the subject of immigration status when such examination would impose an undue burden on private enforcement of employment discrimination laws.[108]

Nevertheless, advocates for employers should discern whether sloppy complaints leave openings making the immigration status of a plaintiff relevant, as the employee’s status may drastically affect the remedies available.[109]  However, as De La Rosa v. Northern Harvest Furniture[110] demonstrates, employers must carefully frame discovery requests for relevant time periods or else risk denial of the requests.  In De La Rosa, the employer requested discovery of the worker’s current immigration status and his status at the time of employment.[111]  The employer claimed that the information was relevant to the worker’s backpay claim.[112]  The court denied the request, however, because "backpay would cover the period after an employee is terminated and before the employer offers reinstatement," and therefore the worker’s immigration status during other times was irrelevant.[113]  

Conversely, advocates for undocumented workers must be mindful of the sorts of claims that will make the immigration status of the worker relevant and discoverable.  For instance, the advocate for the undocumented worker must be careful not to use boilerplate remedial language at the end of the complaint.  Claims for reinstatement, backpay or front pay will likely expose the worker to discovery into the worker’s immigration status, as these remedies may not be available to undocumented workers.  Moreover, claims for wrongful termination alone will likely make the plaintiff’s immigration status at the time of termination relevant for discovery purposes.  Lawyers, however, can protect against inquires into immigration status by avoiding such claims.[114] 

III. Compensation for Work Not Performed: The Wrongdoer-Centric vs. Bright-Line Cases

Despite relative clarity on the issues mentioned above, it remains extremely unclear whether a particular court will award damages to undocumented workers for work not performed after Hoffman.  These wages would typically encompass either backpay or front pay.   Backpay represents wages the employee should have earned from the time the employee was terminated until the case or a proper reinstatement.  So-called "front pay" is synonymous with expected future earnings or future earning capacity.  It seems that courts are divided into two theoretical camps in considering whether undocumented workers are entitled to pay for work not performed, taking either a "wrongdoer" approach or a "bright-line" approach.  In hindsight, it should come as no surprise that courts have divided along these lines.  As discussed earlier, my reading of Hoffman insists that the decision constantly intermingled discussion of the fraudulent conduct of the worker and cases involving worker misconduct with broad reasoning about immigration law’s conflict with awarding backpay to undocumented workers generally.[115]  Thus, it is only natural that some courts would read Hoffman narrowly as focused on worker misconduct, while others would read Hoffman more broadly.  The structure of Hoffman itself, then, has likely led to the duality of wrongdoer centric courts and bright-line courts on this issue.  More recent decisions on this issue since 2005 have further enforced the rigidity of these two analytical approaches.

Wrongdoer-centric courts focus on the factual issue of whether the employer, the employee, or both violated IRCA during the employment relationship, when determining available remedies.[116]  These courts derive support from Hoffman’s fact pattern, because it involved an undocumented worker who violated IRCA by submitting fraudulent documents to his good-faith employer.  The courts also derive support from Hoffman’s repeated references to the wrongful conduct of the employee in the case.  Further, these courts often cite to Justice Breyer’s dissent in Hoffman, which stated that: "[w]ere the Board forbidden to assess backpay to a knowing employer--a circumstance not before us today . . . this perverse economic incentive, which runs directly contrary to the immigration statute's basic objective, would be obvious and serious."[117]  That is, the argument goes, if the employer had been the wrongdoer rather than the employee, the decision in Hoffman would have been different.

Bright line courts, in contrast, view Hoffman as creating categories of remedies available and unavailable to undocumented workers, with little, if any, discussion of which party actually violated IRCA in the case.  These courts derive support from Hoffman’s refusal to bar all remedies to the undocumented worker and the Court’s broad reasons for immigration law’s conflict with the backpay remedy. 

Rosa v. Partners in Progress,[118] Madeira v. Affordable Housing Foundation,[119] and Veliz v. Rental Service Corp.[120] exemplify the "wrongdoer" approach.  Rosa involved a subcontractor’s undocumented worker who was injured on a construction site and filed a personal injury suit against his employer and the general contractors, claiming in part lost earning capacity [front pay] based on U.S. wage levels.[121]  The defendants argued that the undocumented worker should not be able to recover front pay based on U.S. wages because of his status.[122]  The court held that while "generally an illegal alien may not recover lost United States earnings, because such earnings may be realized only if that illegal alien engages in unlawful employment," the worker could recover lost United States-based earnings if the employer "knew or should have known of that illegal alien's status."[123]  Thus if only the worker has violated IRCA by tendering fraudulent documents, the worker is precluded from recovering United States based front pay.[124]  However, if the employer has violated IRCA by failing to verify the worker’s eligibility or by hiring the worker despite knowledge of his undocumented status, the worker can recover U.S. based front pay, regardless of the worker’s conduct.[125]

Similarly, Madeira involved an undocumented worker plaintiff who brought a personal injury suit resulting from a work injury and claimed front pay based on United States wages.[126]  After trial, the jury awarded the undocumented worker future wages, at least part of which were presumably based on United States prevailing wages rather than the wages of the worker’s native country.[127]  The defendants argued that IRCA and Hoffman should limit front pay, if anything, to wages that the worker could have earned in his native country.[128]  Madeira held that immigration law did not bar an award of United States based front pay where:

(1) the wrong being compensated . . . is not authorized by IRCA under any circumstance; (2) it was the employer rather than the worker who knowingly violated IRCA in arranging for the employment;  and (3) the jury was instructed to consider the worker's removability in deciding what, if any, lost earnings to compensate.[129]

Of course, the first prong of the court’s holding is largely insignificant, as the only possible "wrong" to an employee that IRCA authorizes is termination.  It is relatively clear that because IRCA requires a good-faith employer to terminate an undocumented worker upon learning of the worker’s status, workers who defrauded their employers and now only claim wrongful termination would not likely have remedies at law.[130]  The third prong is merely a procedural jury instruction requirement.  This leaves the second prong as the determinative factor for whether a particular undocumented worker can recover backpay or front pay based on U.S. wages.[131]  Here, then, Madeira places the wrong-doer at the forefront of its analysis and its reading of Hoffman:

insofar as an undocumented worker's employment necessarily originates in a past IRCA violation that would presumably have continued but for the injury, the Supreme Court has thus far recognized a backpay or lost earnings award to conflict with federal immigration law only when the IRCA violation prompting employment was committed by the employee, not, as in this case, by the employer. . . when, as in this case, both the illegal employment relationship and the personal injury are attributable to the wrongful conduct of persons other than the undocumented worker, a denial of lost earnings compensation . . . is more apt to subvert both federal and state law than a grant of such compensation is apt to place the two in direct and positive conflict with one another.[132]    

Madeira’s view of the employer as wrongdoer is quite broad as well.  The undocumented worker in Madeira became employed because his brother worked in a hiring position for the employer.[133]  The court acknowledges that it was "apparently unnecessary" for Madeira to tender false verification documents to the employer "given his brother's willingness to hire him despite knowing Madeira's undocumented status."[134]  However, according to the court, because Madeira did not actually submit any fraudulent documents, Madeira did not commit any wrong relevant to its decision.  The court does not mention any evidence that the employer engaged in a general practice of knowingly hiring undocumented workers.  Nevertheless, Madeira concludes that the brother’s knowledge of Madeira’s status can be imputed to the employer,[135] and moreover that the general contractor and site owner can be held liable for the damages even though it was the employer, and not the contractor or owner, who violated IRCA.[136]

Veliz involved an undocumented worker who died as a result of a work-related injury.[137]  There, however, the undocumented worker had "unlawfully subverted the IRCA's enforcement mechanism" when he submitted a fraudulent Resident Alien Card and Social Security Card to obtain employment.[138]  The court concluded that based on language in Hoffman, "permitting an award predicated on wages that could not lawfully have been earned, and on a job obtained by utilizing fraudulent documents" would violate the "letter and spirit" of IRCA.[139]  Thus, the worker’s estate could not recover front pay based on United States wages because of the worker’s wrongdoing.[140]

Alternatively, Renteria v. Italia Foods, Inc. provides a paradigm example of the categorical, "bright-line" approach to the issue of undocumented workers’ rights to backpay and frontpay.[141]  Renteria included no discussion of who may have violated IRCA in the employment relationship and instead stated:

Defendants argue that an award of backpay, front pay, or compensatory damages for a violation of the FLSA likewise would trench on the policies expressed in the IRCA. With regard to backpay and front pay, the Court agrees. The policies that motivated the enactment of the IRCA are certainly subject to debate, but the IRCA is the law of the land, and the Supreme Court has made it clear that awarding backpay to undocumented aliens contravenes the policies embodied in that law. An award of front pay would be inappropriate for the same reason: front pay essentially assumes that the worker will continue to work for the employer in the future, which is against the law for an undocumented alien. We reach a different conclusion, however, regarding compensatory damages.[142]

Based on this broad, wrongdoer-free reading of Hoffman, Renteria thus held that compensatory damages remained available to the plaintiffs because the damages did not "assume the undocumented worker's continued (and illegal) employment by the employer," and because Hoffman did not specifically bar the NRLB from awarding any remedies.[143]  

A New Jersey District Court appeared to take a similar categorical approach in Zavala v. Wal-Mart, Inc., holding that "[p]laintiffs should not be precluded, as a matter of law, from obtaining relief under the FLSA for work already performed, merely by virtue of their undocumented status."[144]  The court did not address at all which party may have precipitated an IRCA violation in reaching this conclusion.[145]  Instead, it noted that the plaintiffs in Hoffman "sought recovery for the hours that they would have, but had not, worked, had they not been terminated for engaging in protected, union-related activities. Here, Plaintiffs hope to recover under the FLSA for work that they already have performed."[146]  Zavala found this distinction "significant, because the Court's concern in Hoffman -- that recognizing a cause of action under the NLRA for undocumented persons for work not performed would undermine the purposes of [IRCA] which ‘forcefully made combating the employment of illegal aliens central to the policy of immigration law,’ . . . is not implicated here in the same respect."[147]  Zavala thus endorsed a bright-line approach to undocumented workers’ remedies: backpay is barred by Hoffman, but pay for work already performed is not.  Other district courts have reached similar categorical conclusions.[148]

Moreover, although not conclusive on the point, the Kansas Supreme Court in Coma Corp., discussed earlier, seemed to implicitly endorse a bright-line reading of Hoffman.  It concluded that "the Hoffman Court reasoned that as an undocumented worker, Castro did not have the right to a remedy based on the presumption of his continued illegal employment.  Thus, wages for work not actually performed were not appropriate."[149]  Consistent with the bright-line approach, Coma never addressed whether it was the undocumented worker or the employer who violated IRCA in determining whether the worker could receive compensation for work performed.[150]  Instead, Coma reasoned that IRCA and Hoffman categorically did not bar an undocumented worker from receiving wages for which he had contracted, for work he had already performed.[151]  However, the court’s reading of Hoffman categorically and without regard to the misconduct language in the opinion, nearly identical to Renteria’s reading of the case, would suggest that the court would not uphold an award of damages for work not performed, regardless of misconduct on behalf of either party.

IV.  Conclusion

            The cases decided in the five years since Hoffman have provided practitioners with relative clarity on certain issues in undocumented workers’ suits against their employers.  First, undocumented workers have standing to sue their employers.  Second, undocumented workers and their employers can expect that courts will allow undocumented workers to recover proper compensation for work already performed.  Third, courts will not order reinstatement of an undocumented worker.  Fourth, courts tend to be circumspect about allowing discovery into workers’ immigration status.  However, courts are willing to grant discovery, at the very least at the damages phase of a bifurcated trial, where plaintiffs plead remedies to which undocumented workers are not entitled.

            The real legal battleground five years after Hoffman concerns whether a particular court that has not yet ruled on the issue will allow undocumented workers to recover backpay or frontpay for work they have not performed.  Close analysis of cases that have addressed the issue, however, demonstrate two major approaches, which I have labeled the "wrongdoer" and "bright-line" approaches.  When faced with a court where the issue is one of first impression, then, practitioners on either side can be confident that these cases provide them with tools to argue their case regardless of their case’s specific facts. 

For instance, in a case where the plaintiff has submitted fraudulent documents to his good-faith employer, the employer’s counsel can argue that wrong-doer cases like Veliz and Rosa, and by analogy, Crespo, should preclude the worker from most, if not all, remedies.  In turn, the worker’s counsel can argue that the court accept bright-line cases such as Renteria, Zavala, and Singh to allow at least some recovery regardless of the worker’s wrongdoing. 

When presented with a case of a knowing employer of undocumented workers, the worker’s counsel instead can argue the wrongdoer line of cases: that the court should adopt the logic of Rosa and Madeira and allow most, if not all, remedies when the employer has violated IRCA.  Meanwhile, the employer’s counsel can argue that regardless of the employer’s violation of IRCA, the court should follow the logic of the bright-line cases like Renteria and hold that backpay and front pay are nevertheless barred by Hoffman and IRCA.

With approximately seven million undocumented workers in the United States today, we can expect that undocumented workers will continue to bring claims under federal and state laws against their employers.  Thus, counsel for employers and those workers should spend most of their time and effort in the major battleground – backpay and front pay remedies—rather than in ultimately futile attempts to change the course of five years of jurisprudence on issues that have become relatively settled since Hoffman.  Moreover, both federal and state legislators should pay keen attention to developments in this area of the law to determine whether the policies motivating the immigration, employment, and discrimination laws continue to be served best by current case law, or whether statutory changes are needed to better effectuate and clarify those policies.

About The Author

William J. Simmons is a J.D. Candidate May 2007, Rutgers University School of Law - Newark. He will join the Ballard Spahr Andrews & Ingersoll LLP collaborating as a Labor, Employment, and Immigration associate, beginning September 2007.

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