Immigration Article of the Day: Remedies for Unlawful Alien Workers: One Law for the Native and for the Stranger Who Resides in Your Midst? An Empirical Analysis by Michael H. LeRoy

Remedies for Unlawful Alien Workers: One Law for the Native and for the Stranger Who Resides in Your Midst? An Empirical Analysisby Michael H. LeRoy University of Illinois College of Law, April 7, 2013Georgetown Immigration Law Journal, Vol. 28, No. 2, 2013

Abstract: In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court ruled that the National Labor Relations Board could not order backpay for an unlawful alien whose employer fired him for supporting a union. While the majority reasoned that the Immigration Reform and Control Act of 1986 would be undermined by the Board’s remedy, four dissenting justices believed that stripping the NLRB of this power would enable employers to violate the law without a real consequence, and encourage more hiring of unlawful aliens. My primary research question asks: In work related disputes, where the plaintiff is a suspected or known unlawful alien, how often do courts use immigration status against these individuals? The answer is that most courts disregard the immigration status of complainants. This research is germane to current proposals for comprehensive reform of immigration laws. The analysis draws from a database of court opinions, decided from 2002-2012, where employers argued that Hoffman Plastic should preclude a monetary judgment to unlawful aliens. Specifically, I find: 1. Depending on the type of complaint, plaintiffs won between 60% (working conditions) and 77.5% (pay) of the rulings. 2. Depending on the law, plaintiffs won between 53.3% (scaffolding law) and 77.1% (Fair Labor Standards Act) of the rulings. 3. Only 5% of the rulings mirrored the outcome in Hoffman Plastic, where courts found a violation of an employment law, but denied a monetary award because of the unlawful status of the plaintiff. The study fills a gap in the research literature by measuring when, and how often, courts apply Hoffman Plastic’s disallowance of monetary remedies. It does not suggest a theory to determine when there should be monetary relief for an unlawful alien, and when this relief should be denied. This is because textual analysis shows that theoretical clarity is impossible given the deep complexity and wild variations in Hoffman Plastic situations. Sometimes, the employer violated immigration law; sometimes, neither the employer nor employee complied with the immigration law; and occasionally, an employee not only lied but stole someone’s identity. Judicial experience in dealing with these issues shows that a case-by-case approach is preferable to a one-size-fits-all approach in legislation. To the extent that Congress takes up proposals to broaden Hoffman Plastic beyond the NLRA, this study presents reasons that courts have given to reject this harsh remedy policy. This brings me to a theme, rather than a theory, that might explain how most courts behaved in my study.

The biblical title of this Article — “One Law for the Native and for the Stranger Who Resides in Your Midst” — connects my findings to the Hoffman Plastic decision. The Supreme Court invited lower tribunals to bifurcate remedies, so that unlawful aliens would receive little or no legal protection. But most courts honored the biblical injunction to apply laws uniformly to “natives” and “strangers.” While most courts in this study did not delve deeply into the ethical implications of Hoffman Plastic, they intuited the moral from the “native” and “stranger” passage in Exodus — when a nation treats immigrants who reside unlawfully in their midst as outcasts, they devalue their laws and debase the welfare of their citizens.

 KJ