Federal immigration law prohibits businesses from employing individuals who do not have authorization to work in the U.S., either because they have certain types of temporary visas or because they lack legal immigration status altogether. Courts have wrestled with the question of how much protection federal and state labor laws offer to undocumented immigrants. The U.S. Supreme Court ruled that undocumented immigrants may not recover damages for violations of the National Labor Relations Act (NLRA). Recent appellate court decisions, however, have left the possibility open that relief may be available under state labor and employment laws and the federal Fair Labor Standards Act (FLSA).
Under the NLRA, the National Labor Relations Board (NLRB) enforces laws protecting the rights of employees to engage in activities related to union organizing. This includes filing lawsuits seeking back pay and other damages on behalf of employees. The U.S. Supreme Court ruled in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), that undocumented immigrants may not recover damages under the NLRA. It held that the Immigration Control and Reform Act of 1986 (IRCA), which established the current system of immigrant work authorization, prohibited the employment of the worker in question and therefore preempted his NLRA claims. This preclusion only affected the immigrant employee. The NLRB could still pursue penalties against the employer for NLRA violations affecting the employee.
Appellate and district courts have generally followed Hoffman‘s ruling with regard to IRCA’s preemption of state and local employment laws. A federal district court in Pennsylvania cited preemption under IRCA in striking down a city ordinance placing restrictions on employment and housing for undocumented immigrants. Lozano v. City of Hazelton, 496 F.Supp.2d 477, 518-19 (M.D. Pa. 2007). In a case involving an NLRB ruling issued before Hoffman, the Second Circuit Court of Appeals refused to enforce the ruling after Hoffman. NLRB v. Domsey Trading Corp., 636 F.3d 33 (2nd Cir. 2011). Federal labor laws separate from the NLRA have not received much direct scrutiny from courts on the question of preemption, however, until recently.
Two federal appellate courts issued rulings upholding awards of damages to undocumented immigrants for wage and hour violations under the FLSA. The Eleventh Circuit held that Hoffman did not apply to FLSA claims, noting key differences between the FLSA and the NLRA. Lamonica v. Safe Hurricane Shutters, Inc., No. 11-15743, slip op. (11th Cir., Mar. 6, 2013). The FLSA, it held, gives individual workers the right to sue their employers for alleged violations of laws that apply to work they have already performed. The NLRA gives an administrative agency broad discretion to pursue claims on employees’ behalf to protect their future employment rights. IRCA preempts NLRA claims because it prohibits future employment, while immigration status does not affect the right to compensation for past work under the FLSA.
The Eighth Circuit applied similar reasoning in affirming an award of FLSA damages to several undocumented immigrants. Lucas v. Jerusalem Cafe, LLC, No. 12-2170, slip op. (8th Cir., Jul. 29, 2013). It specifically held that employers may not “exploit any employee’s immigration status” or use their lack of employment authorization as a means of avoiding liability for FLSA violations. Id. at 2.
If you need to speak to an employment attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or (646) 867-7997.
More Blog Posts:
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