TBA Law Blog

Posted by: John Winters on Jun 21, 2008

Journal Issue Date: Jul 2008

Journal Name: July 2008 - Vol. 44, No. 7

What are the rules after Hoffman?

A surge in undocumented workers across the country has sparked a fierce battle over immigration that is being waged on several fronts, including Congress, state legislatures and the public airwaves. The often overheated debate is multifaceted and complex. The competing interests include economic advancement by those entering the country, economic realities confronting large and small companies, citizens whose economic interests are threatened, rule of law proponents, homeland security concerns and cultural differences. Further complicating matters is our country's inability to seal its vast borders. Thus far, attempts to reach a comprehensive solution to this difficult issue have been fruitless.

Our country's inability to resolve this issue has resulted in a significant increase in litigation relating to undocumented workers. One issue in particular should generate interest for employers and undocumented workers alike: whether undocumented workers can recover lost wages and back pay in lawsuits claiming Fair Labor Standards Act (FSLA) violations and workplace discrimination.

At this point, authority exists to support arguments on either side of the issue. A trend is beginning to emerge, however, to provide greater protection to undocumented workers' interests. Absent comprehensive legislative action, the Supreme Court eventually will be called upon to rule on this issue, given this split of authority.

Hoffman Plastic Compounds Inc. v. NLRB
The court, in Hoffman Plastic Compounds Inc. v. NLRB,[1] addressed the National Labor Relations Board's ability to award backpay to an undocumented worker. The NLRB determined that a company had laid off four employees "'to rid itself of known union supporters' in violation of  § 8(a)(3) of the National Labor Relations Act (NLRA)." One of the employees testified at the NLRB hearing "that he was born in Mexico and that he had never been legally admitted to, or authorized to work in, the United States." He further admitted that he had gained "employment with Hoffman only after tendering a birth certificate belonging to a friend who was born in Texas." The NLRB awarded the undocumented worker $66,951 for backpay, plus interest.[2] The employer's appeal followed.

The Hoffman court held that federal immigration policy precluded the NLRB's award of backpay to an undocumented alien.[3] The court reasoned that under the Immigration Reform and Control Act of 1986 (IRCA), there had to be fraud or illegality in the employment relationship's inception.

[I]t 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, which subverts the cornerstone of IRCA's enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations.[4]

Given the fraudulent foundation, a contrary holding, according to the court, "would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws and encourage future violations."[5]

Also important to the court's ruling was undocumented workers' inability to legally mitigate damages "without triggering new IRCA violations, either by tendering false documents to employers or by finding employers willing to ignore IRCA and hire illegal workers."[6] During oral argument, the NLRB acknowledged that it had failed to consider this "tension." The court did not, however, believing plaintiff's long-standing duty to mitigate damages precluded an award of backpay.

While pointing out the NLRB lacked authority to award backpay, the court declared that its decision "does not mean that the employer gets off scot-free." The NLRB imposed other significant sanctions against the employer for engaging in conduct that violated the NLRA, which the employer failed to challenge in the appeal. These "'traditional remedies'" were deemed sufficient "to effectuate national labor policy regardless of whether the 'spur and catalyst' of backpay accompanies them."[7]

In 2002, Hoffman was considered a significant blow to the rights of undocumented workers. Its practical impact, however, has been limited somewhat since then by lower courts' willingness either to distinguish or narrowly interpret the court's holding. Consequently, in many jurisdictions, undocumented workers currently enjoy legal protections that many assumed Hoffman had taken away. The legal battle to preserve and enhance such protections is currently being waged in courtrooms throughout the country.

Application of Hoffman May Be Limited
Courts have drawn an important distinction in cases involving work already performed by undocumented workers. Several courts have refused to extend the application of Hoffman to limit pay in this regard.[8] A different court held that "Hoffman does not establish that an award of unpaid wages to undocumented workers for work actually performed runs contrary to IRCA."[9] Similarly, a court refused to extend Hoffman's application to plaintiffs who did not seek post-termination backpay under the Migrant and Seasonal Agricultural Worker Protection Act.[10] Another court held "that workers are not precluded by virtue of their undocumented status from seeking relief under the FLSA for unpaid minimum wage and overtime claims."[11]

{quotes align=right}Lower courts have pointed to multiple policy considerations that counsel against extending Hoffman when the undocumented worker has already performed the work.{/quotes} First, "the distinction between undocumented workers seeking backpay for wages actually earned and those seeking backpay for work not performed has been recognized by the courts even prior to the decision in Hoffman."[12] Moreover, "while the award of backpay in Hoffman was held to be contrary to federal immigration law, compelling employers to pay illegal aliens at the same rate as legal workers (for work actually performed) helps eliminate the incentive to employ illegal aliens, one of the stated goals of federal immigration law."[13]

The Ninth Circuit has expressed a willingness to make an even more significant distinction further benefiting undocumented workers. It recently declared, in dicta, that it seriously doubts Hoffman applies to Title VII cases.[14] This statement was predicated upon the multiple differences between the NLRA and Title VII. "Congress gave them distinct remedial schemes and vested their enforcement agencies with different powers. For purposes of this opinion, we note at least three significant differences between the two statutes." ... "First, the NLRA authorizes only certain limited private causes of action, while Title VII depends principally upon private causes of action for enforcement." ... "Second, Congress has armed Title VII plaintiffs with remedies designed to punish employers who engage in unlawful discriminatory acts, and to deter future discrimination, both by the defendant and by all other employers." Finally, "under the NLRA, the NLRB may award backpay to workers when it has found that an employer has violated the Act. Under Title VII, a federal court decides whether a statutory violation warrants a backpay award."[15]

Before completely dismissing the Ninth Circuit decision as a typical fringe opinion, note that the Honorable Eugene E. Siler Jr., senior judge for the Sixth Circuit, sat on the panel by designation. In Judge Siler's concurring opinion, he also questioned applying Hoffman to Title VII actions.[16] His concurring opinion may enhance the possibility that Rivera will gain acceptance within the Sixth Circuit and elsewhere.

Impact on Discovery
The Rivera decision is also important because the plaintiffs moved the trial court for a protective order barring discovery into their immigration status.[17] They argued that "because each plaintiff had already been verified for employment at the time of hiring and because further questions pertaining to immigration status were not relevant to their claims " additional questioning would have a chilling effect on their pursuit of their workplace rights."[18] After Hoffman was decided, plaintiffs abandoned backpay claims for undocumented workers. The trial court granted plaintiffs some of the requested relief.

The Ninth Circuit affirmed the trial court's decision to issue a protective order that prohibited discovery into each plaintiff's immigration status. The court concluded that "discovery of each plaintiff's immigration status constitutes a substantial burden, both on the plaintiffs themselves and on the public interest in enforcing Title VII ..."[19] To rule otherwise, the court believed, would have a chilling effect on bringing civil rights actions.[20] According to the court, such a result would "unacceptably" burden the public interest.

Other courts, including some within the Sixth Circuit, have followed Rivera and limited the scope of discovery in this regard.[21] While the approach taken in Rivera appears to be a growing trend, the law is not uniform. Several courts have taken a more expansive approach to discovery that permits such an inquiry.[22]

As the foregoing authority suggests, it is unlikely that this complicated issue will be resolved soon. While any Congressional action has stalled until after the 2008 election at the earliest, lower courts are dealing with an increasing number of cases that will determine, in the short term, the legal protection afforded to undocumented workers. That trend will continue, almost surely, until comprehensive immigration legislation is enacted or the Supreme Court addresses this issue once again.

- - -

JOHN E. WINTERS is a partner at Kramer Rayson LLP in Knoxville. He maintains a diverse trial practice that focuses primarily upon employment and commercial litigation matters. He is a member of the Tennessee Bar Association and a graduate of the TBA's 2007 Leadership Law Class.

- - -


  1. 535 U.S. 137 (2002).
  2. Id. at 140-42.
  3. 535 U.S. at 151.
  4. Id. at 148.
  5. Id. at 151.
  6. Id.
  7. Id. (citing Sure-Tan Inc. v. NLRB, 467 U.S. 883, 904 (1984)).
  8. See Chellen v. John Pickle Co. Inc., 446 F. Supp. 2d 1247, 1278 (N.D. Okla. 2006) ("Hoffman does not preclude an award for work already performed. . . ."); Flores v. Amigon, 233 F. Supp. 2d 462, 463 (E.D.N.Y. 2002) (refusing to apply Hoffman where an undocumented worker sought pay for work already performed).
  9. Flores v. Albertsons Inc., Case No. CV01-00515 AHM, 2002 U.S. Dist. LEXIS 6171, at *19 (C.D. Cal. Apr. 9, 2002).
  10. See Martinez v. Mecca Farms Inc., 213 F.R.D. 601, 604-05 (S.D. Fla. 2002).
  11. Chellen, 446 F. Supp. 2d at 1278 (citing Zavala v. Wal-Mart Stores Inc., 393 F. Supp. 2d 295 (D.N.J. 2005)).
  12. i>Flores v. Amigon, 233 F. Supp. 2d 462, 463-64 (E.D. N.Y. 2002).
  13. Galaviz-Zamora v. Brady Farms Inc., 230 F.R.D. 499, 501-02 (W.D. Mich. 2005). A similar argument was rejected by the Court in Hoffman. 535 U.S. at 141.
  14. See Rivera v. NIBCO Inc., 364 F.3d 1057, 1067 (9th Cir. 2004).
  15. Id. at 1068.
  16. Rivera, 364 F.3d at 1075.
  17. 364 F.3d at 1064.
  18. Id. at 1061.
  19. Id.
  20. Other courts have elaborated upon this rationale, finding "that the in terrorem effect of inquiring into the immigration status of employees suing their employer for unfair labor practices is devastating. Not only does an undocumented alien face the reality of possible retaliatory adverse work place actions by the employer, but he or she also faces the very real possibility of being reported to the Department of Homeland Security and subsequent deportation or even criminal prosecution." EEOC v. City of Joliet, 239 F.R.D. 490, 493 (N.D. Ill. 2006) (citation omitted).
  21. See Galaviz-Zamora, 230 F.R.D. at 503 ("... Defendants are not entitled to discover information regarding Plaintiffs' immigration status ..."); Potluri v. Yalamanchili, Case No. 06-CV-13517, 2007 U.S. Dist. LEXIS 64906, at *9 (E.D. Mich. Sept. 4, 2007) ("Defendants do not show legitimate value in the immigration information."); Hernandez v. City Wide Insulation of Madison Inc., Case No. 05C0303, 2006 U.S. Dist. LEXIS 86756, at *4 (E.D. Wis. Nov. 30, 2006) ("even assuming that [the immigration] information establishes that plaintiffs lied to their current employers to secure jobs, it is not dispositive of their credibility such that it outweighs the harm that disclosure might bring to plaintiffs."); EEOC v. Kovacevich "5" Farms, Case No. 1:06-CV-0165-OWW-TAG, 2007 U.S. Dist. LEXIS 43672, at *10-*11 (E.D. Cal. Jan. 4, 2007) ("Generally, the Ninth Circuit and other federal courts do not allow defendants in employment-discrimination actions to question plaintiffs directly about their immigration status or to seek the disclosure of Social Security numbers or similar identifying information that could lead to the discovery of the plaintiffs' immigration status, even when a protective order has been entered and the defendants purportedly have requested the information solely to obtain additional material relevant to their defense.")
  22. See Luna v. Del Monte Fresh Produce (Southeast) Inc., Case No. 1:06-cv-2000-JEC, 2007 U.S. Dist. LEXIS 36893, at *19-*20 (N.D. Ga. May 18, 2007) ("Lorenzo's work history and activities after he left defendants' farms in June, 2006 are legitimate areas of inquiry despite the danger that Lorenzo's answers might reveal damaging information concerning his immigration status."); EEOC v. First Wireless Group Inc., Case No. 03-cv-4990 (JS) (ARL), 2007 U.S. Dist. LEXIS 11893, at *13 (E.D.N.Y. Feb. 20, 2007) (information regarding immigration status "may become relevant at subsequent stages of litigation, i.e. determination of damages"); Velasquez Catalan v. Vermillion Ranch L.P., Case No. 06-CV-01043-WYD-MJW, 2007 U.S. Dist. LEXIS 22638, at *4-*5 (D. Col. Mar. 28, 2007) ("[T]his court finds that producing such requested discovery would not have a 'chilling effect' or an in terrorem effect on plaintiffs because unlike in the Rivera and First Wireless Group Inc. cases cited by plaintiffs, in this case, defendants, as H-2A employers of plaintiffs, have an affirmative legal duty to report workers who abscond to Immigration Customs Enforcement ... within twenty-four (24) hours of discovery.").

JOHN E. WINTERS is a partner at Kramer Rayson LLP in Knoxville. He maintains a diverse trial practice that focuses primarily upon employment and commercial litigation matters. He is a member of the Tennessee Bar Association and a graduate of the TBA’s 2007 Leadership Law Class.