Collective Bargaining with Undocumented Workers (2-7-08)

A recent decision by the U.S. Court of Appeals for the D.C. Circuit provides some guidance to employers navigating conflicting policies regarding undocumented workers and the collective bargaining process. On the one hand are the laws and policies that make it illegal to employ undocumented workers, while on the other are those that protect the interests of workers to be represented in their dealings with employers.

At issue in Agri Processor Co. v. NLRB, decided on January 4, 2008, was whether the National Labor Relations Board could require the employer to bargain collectively with the United Food and Commercial Workers after the employees, including undocumented workers, voted to be represented by the union. The employer argued that the National Labor Relations Act (“NLRA”), which requires an employer “to bargain collectively with the representatives of his employees,” does not cover undocumented workers. However, the court held that undocumented workers are “employees” under the NLRA, and therefore protected by that law.

A comparison between the Agri Processor decision and other cases and agency policies demonstrates the uncertainties which arise when employing undocumented workers. In 2002, the U.S. Supreme Court held that an undocumented worker could not prevail on a claim for backpay after his employer fired him in retaliation for engaging in union activities (Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137). Agri Processor and Hoffman may seem to contradict one another – offering protections to undocumented workers in one situation, while denying protections in another. The distinction is that in Agri Processor, the court enforced the present rights of employees in the workplace to organize and bargain collectively. Thus, employers should expect workers to have the same legal rights in the workplace, regardless of their immigration status.

In Hoffman, the court denied a wrongfully-terminated worker backpay for the period of time when he would have worked if he had not been fired. The termination for his union activity was still unlawful, but he could not get backpay because he was not legally entitled to the job in the first place. The Court noted that he had obtained work based on fraudulent documents, and held essentially that he was not entitled to backpay because he should not have been working there in the first place – much in the same way that reinstatement to his former position would have been proper.

In contrast, the U.S. Equal Employment Opportunity Commission has a longstanding policy of enforcing claims against employers who retaliate against employees for complaining of employment discrimination, even if that employee is in this country and working illegally. Similarly, undocumented workers can pursue wage claims.

COUNSEL TO MANAGEMENT:

Agri Processor highlights the risks involved with engaging in courses of action based, in whole or in part, on an employee’s working status. Employers must remember that even undocumented workers are protected by discrimination, safety, wage-and-hour, and other employment laws. Of course, employing undocumented workers remains illegal, and failing to put in place policies to avoid hiring undocumented workers can be quite costly. Employers must not rely on workers’ undocumented status to avoid obligations imposed by labor and employment laws. Policies which pertain to undocumented workers must be carefully designed and implemented to avoid violating other laws, such as national-origin discrimination. Laws against employing illegal aliens are themselves complex, and the interactions between these laws and other laws only further muddies the picture. Employers should seek experienced counsel to ensure compliance with these networks of laws and regulations.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento.