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National Review Online


A Wink Too Far

April 03, 2002

By Walter Olson

Should illegal aliens be able to collect damages for being fired from jobs that it was unlawful for them to hold in the first place? They've been doing so for several years now, but last week the Supreme Court, splitting 5-4 along ideological lines, called a halt to this absurdity, declaring the practice to be in blatant conflict with immigration law. But the narrow victory for common sense in Hoffman Plastic Compounds Inc. v. NLRB provides little reason to relax: Sen. Edward M. Kennedy (D., Mass.) promptly denounced the ruling and said he would seek legislation to restore illegal workers' entitlement to back pay, setting the stage for further struggles ahead.

The man who called himself "José Castro" applied for a job at the Hoffman Plastic Compounds factory near Los Angeles, proffering a birth certificate indicating that he had been born in Texas. He and some coworkers were subsequently laid off and the National Labor Relations Board ruled that Hoffman had improperly targeted for layoffs union sympathizers like Castro (who had distributed union cards to other workers). In January 1992 it ordered the company to grant back pay to Castro and three other employees—"back pay" representing sums he would have been paid had he been kept at the job (though, as is usual in such cases, there was no requirement that he even things up by performing any "back work").

A subsequent hearing before an administrative-law judge, for purposes of determining the exact amount Castro would receive, elicited a surprise revelation: He admitted that he was in fact from Mexico and not legally in this country, and had got the job by submitting the birth certificate of a friend born in Texas. (The Immigration Reform and Control Act of 1986 makes it a criminal offense for an alien to accept employment after entering this country illegally.) The judge threw out his case, but the NLRB reversed that decision and reinstated a back-pay award of $67,000, stopping the meter only on the day of the hearing at which his illegal status and fraudulent application were exposed—the apparent logic being that he was entitled to the full fruits of his deception till then.

The board's ruling was part of a wider turnaround in which many federal agencies had begun to wink at violations of the federal government's own strictures against illegal employment. During the 1990s, the AFL-CIO had adopted an if-you-can't-beat-'em-join-'em approach, deciding that, having failed in its efforts to combat the employment of illegals, it would instead try to recruit them as union members. The NLRB, a quasi-independent regulatory panel that always includes within its ranks a strong faction attuned to the views of organized labor, soon got on board and agreed to start handing out back-pay awards to workers like Castro while overlooking their illegal status. In 1999, the Clinton administration's Equal Employment Opportunity Commission threw its weight behind the same principle, declaring for the first time that illegals deserve back-pay awards in discrimination cases. Incredibly, in its eagerness to encourage complaints from its new constituency, the EEOC went so far as to offer a pledge that—to quote reports from the time—it "will not inform other government agencies if an immigrant is here illegally." In effect, it was not just informally winking at illegality but offering a great big institutional promise to wink.

There was a brief stir: Some Republicans on Capitol Hill called the policy "absurd," and a Chicago Tribune editorial declared that if the "arrogant [and] overreaching" agency "was looking for a way to make itself seem ridiculous—even pernicious—it could hardly have found a better one." But the outcry soon faded, and before long the EEOC (as well as the NLRB, which started earlier) had racked up a series of wins, such as a $72,000 settlement extracted from a Minnesota Holiday Inn on behalf of nine illegal Mexican workers. One might naturally wonder how it could happen that the workers would still be on hand in the U.S. to collect such settlements, but the usual routine in such cases is for lawyers to stall INS proceedings against the workers while they press their complaint; if they voluntarily go back to their home country, on the other hand, their chances of collecting a back-pay award typically evaporate. The prospect of a windfall thus clearly works as an incentive for undocumented workers to stick around in further violation of federal law, rather than bring the illegality to an end by leaving.


There was one great big legal obstacle to the rollout of the new back-pay crusade—a 1984 Supreme Court case, entitled Sure-Tan v. NLRB, in which the Court had specifically addressed the question of illegals' entitlement to back pay: Given "the objective of deterring unauthorized immigration that is embodied in the INA [the then-prevailing federal immigration law] . . . in computing backpay, the employees must be deemed 'unavailable' for work (and the accrual of backpay therefore tolled [suspended]) during any period when they were not lawfully entitled to be present and employed in the United States." Seems clear enough, right? Unless you're here legally, you can't run the meter on back pay. But lawyers were soon at work skillfully conjuring away this language, as mere "dictum" (surplus reasoning not necessary to the result in the original case), or in conflict with other pronouncements by the Court. That was good enough for agencies like the NLRB and for several federal courts.

When the Castro case worked its way up to the Supreme Court, the Board and its defenders tried a variety of arguments. They suggested that without the prospect of paying back pay to illegals, employers would feel free to violate labor laws with impunity. But in fact businesses already face tough legal penalties if they have reason to know that any of their workers is an illegal—while those who correctly believe their workers to be of legal status will continue, as before, to face the full range of punishments for labor-law violations. For an employer to cross its fingers and hope that an apparently lawful employee like Castro will turn out to have committed document fraud in which it, the employer, was in no way complicit is, to say the least, an unpromising legal strategy.

Both sides also trotted out rather unedifying "law and economics" guesswork about how their desired outcome in the case would discourage illegal aliens' employment. Dissenting Justice Stephen Breyer, writing for the Court's liberal wing, argued that hammering Hoffman with an award would send a message to employers not to hire illegals (an odd way of sending such a message, since the company hadn't realized it was dealing with an illegal). As for the countervailing risk that jackpots might attract more illegals to these shores, Breyer dismissed that as merely "speculative." But of course, the most powerful message sent by the awards to prospective illegals was not so much "Hurry on up, you might win one of these awards too," but rather: "Now do you see how unseriously our government takes its immigration law?"

The majority opinion, by Chief Justice William Rehnquist, cut to the heart of the matter: An award of back pay "condones and encourages future violations." Which made it all the more bewildering that the U.S. Justice Department—not Janet Reno's, but John Ashcroft's—had weighed in on the Board's side, in a brief by Solicitor General Theodore Olson urging affirmance of Castro's award. It's true, of course, that the solicitor general's office commonly goes to bat for agencies' legal positions that it may not fully agree with. On the other hand, you'd think the integrity of federal immigration law would count in Justice's calculations as a "client" at least as legitimate as the NLRB—more so, if anything, since Justice's own Immigration and Naturalization Service is in charge of keeping out undocumented workers.

By siding with the Board, at any rate, Justice handed the Court's liberals their seemingly strongest argument, which Breyer duly made the most of in his dissent: The Justice Department is supposed to count as the authority on immigration law, so if it doesn't see any conflict between IRCA and back-pay awards for illegals, why should we? It's a good question, and raises the question of how it is, exactly, that Justice and the INS came to be afflicted with a kind of institutional Stockholm Syndrome on these matters. INS's position on the back-pay matter has actually been worse than mere silence. In 1999, when the Clinton EEOC came out with its startling announcement that it intended to keep the INS in the dark about immigration violations it found, a spokesman for the INS leadership astoundingly declared that the agency was "going to support" the new EEOC policy.

The phrase that leaps to mind is "mockery of the law." Should we be surprised at news reports showing immigration enforcers' morale and efficiency to be at rock bottom?

Original Source:



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