Industry Focus

Laws governing employee rights and immigrant workers can be confusing, but a recent ruling by the U.S. Supreme Court makes some issues clearer.

In Hoffman Plastics Compounds Inc. v. NLRB, the Supreme Court ruled that the National Labor Relations Board (NLRB) lacked authority to order back pay to an undocumented worker who was laid off from his job because of union organizing.

The court said providing the undocumented worker with back pay would conflict with U.S. immigration laws, which require employees to present documents that establish their identities and authorization to work in the United States.

The employee in the case had provided false documentation to Hoffman Plastics Compounds, Los Angeles. After being hired, he tried to organize a union and subsequently was laid off, which is a violation of the National Labor Relations Act (NLRA).

NLRB sought back pay for the worker for a time period following the layoff, but the Supreme Court ruled back pay should not be awarded "for years of work not performed, for wages that could not lawfully have been earned and for a job obtained ... by criminal fraud."

However, the U.S. Department of Labor (DOL) says the court's decision does not undermine the rights of undocumented workers under U.S. labor laws, such as the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Such laws provide core labor protections for vulnerable employees, such as a minimum wage, overtime and timely payment for work.

DOL states it will enforce FLSA and MSPA regardless of whether a worker is documented—enforcement of such laws is different from enforcing NLRA.

In the Hoffman Plastics Compounds case, NLRB sought pay for hours the employee would have worked had he not been illegally discharged under a law that does not require back pay as a remedy. But FLSA and MSPA allow an employee to seek back pay for hours actually worked under laws that require payment for such work.

Although DOL makes distinctions among these labor laws, it still is determining how other labor laws it enforces are affected by the ruling. These include laws that prohibit retaliation for engaging in protected conduct.

For more information about the court's ruling or FLSA and MSPA, contact DOL at (866) 487-9243 or access its Web site, www.dol.gov.

Ambika Puniani is editor of Professional Roofing magazine and NRCA's director of communications.

To reach me, write 10255 W. Higgins Road, Suite 600, Rosemont, IL 60018-5607; telephone (847) 299-9070, Ext. 255; or e-mail apuniani@nrca.net.