By Nick Beermann

The practical reality of many restaurants’ labor needs is that they could not operate successfully without employing immigrant workers. Those labor needs could explain why, according to a 2003 National Restaurant Association estimate, the restaurant industry is one of the largest private-sector employers of immigrants in the United States, employing approximately 1.4 million immigrant workers a year.

Unfortunately, there is a common misperception among restaurants and other employers that immigrant workers do not share the same rights as their fellow U.S. citizens or permanent residents with legal work permits. Employer misconceptions about the rights of immigrant employees arise most frequently concerning undocumented workers, i.e., non-U.S. citizens who are not authorized to work in America or who lack legal immigrant status.

The Supreme Court’s opinion in Hoffman Plastic Compounds Inc. v. National Labor Relations Board 1 has only helped fuel employer misperceptions. In Hoffman, an undocumented factory worker sued his employer for back pay, alleging that the employer fired him in retaliation for attempting to organize a union. The employee had never been legally admitted into the United States and was hired only after submitting a friend’s birth certificate to his employer.

Under NLRB precedent, employers can be held liable for back pay for work not performed for violations of the National Labor Relations Act.2 Analyzing the NLRB’s precedent, the Court ruled that awarding back pay to an employee for “years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud” was inconsistent with the Immigration Reform and Control Act of 1986 (ICRA).3

The ICRA prohibits employment of aliens without valid documentation, such as a Social Security card or other documentation evidencing employment authorization in the United States.4 As stated by the Court:

Awarding backpay in a case like this not only trivializes the immigration laws, it also condones and encourages future violations. . . . We therefore conclude that allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in the ICRA.5

Some restaurant employers and their attorneys may interpret Hoffman to mean that undocumented workers are not entitled to back pay awards at all. But two recent federal courts in California held that Hoffman addressed back pay awards for undocumented workers only in the context of NLRA violations.6 As stated in Singh: “If employers know they have to pay illegal aliens the same wages as legal workers, they are far less likely to hire an illegal worker and run the risk of subjecting themselves to sanctions under the ICRA.”7 Thus, with respect to wage claims, Hoffman does not appear to limit undocumented workers’ potential damages.

Whether Hoffman bars back pay awards to undocumented workers in the discrimination context remains unclear. In reaction to Hoffman, the Equal Employment Opportunity Commission published guidance on June 28, 2002, reaffirming its commitment to enforcing federal discrimination laws, such as Title VII,8 by protecting all employees, regardless of their immigration status.9 But the EEOC also specifically noted that under Hoffman, “relief may be limited if an individual subjected to discrimination does not have appropriate work authorization.”10 Under the EEOC’s rationale, an undocumented worker is protected from discrimination and retaliation under Title VII, but the ICRA would bar an undocumented worker a right to Title VII relief under Hoffman.

The Ninth Circuit addressed that very issue last year in Rivera v. NIBCO, Inc.,11 a disparate impact discrimination case involving a dispute over a protective order that barred questions about the immigration status of a group of Latino plaintiffs. On appeal of an order barring any discovery of the plaintiffs’ immigration status, NIBCO asserted that, under Hoffman, the plaintiffs were foreclosed from an award of back pay, making their immigration status essential to its defense. NIBCO further argued that Hoffman entirely barred the plaintiffs back pay relief under Title VII.12

The Ninth Circuit rejected NIBCO’s argument, ruling that whether Hoffman barred the plaintiffs’ back pay claim was irrelevant because NIBCO’s liability under Title VII had not yet been determined.13 But the court dodged the issue of whether Hoffman acted as a complete bar to Title VII claims brought by undocumented workers because of the ICRA.14 Thus, it remains unclear, at least in the Ninth Circuit, whether Hoffman will bar illegal aliens from recovering damages for discrimination claims. No reported Washington case has yet dealt with Hoffman.

In light of the snail’s pace of litigation, attorneys representing restaurants or restaurant workers should continue to expect different interpretations of Hoffman. But, given the recognition by courts that undocumented workers share the same rights to wages as their legally employed co-workers, employers should not view Hoffman or an undocumented worker’s immigration status as an open invitation to treat such workers differently and pay them less.

Equally obvious, restaurant employers and their attorneys should not view the relative lack of clarity as to whether Hoffman bars undocumented workers from recovering damages for discrimination with the idea that those workers will not be able to recover anything because of Hoffman. For now, Hoffman jurisprudence remains unsettled.

1 535 U.S. 137 (2002).

2 29 U.S.C. ¤ 158 et seq. See ABF Freight Sys., Inc. v. NLRB, 510 U.S. 317 (1994); A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408 (1995).

3 Hoffman, 535 U.S. at 147--49. The Act is codified at 8 U.S.C. ¤ 1324a.

4 See Hoffman, 535 U.S. at 147--49; see also 8 U.S.C. ¤ 1324a(b) and 8 C.F.R. 274a.

5 Hoffman, 535 U.S. at 150--52.

6 See Singh v. Jutla & C.D.&R. Oil, Inc., 214 F. Supp. 2d 1056, 1061 (N.D. Cal., 2002) (denying motion to dismiss on grounds that Hoffman did not bar the plaintiff’s Fair Labor Standards Act retaliation claim and stating that including undocumented workers in the FLSA’s coverage is consistent with immigration policy); see also Flores v. Albertson’s, Inc., 2002 U.S. Dist. LEXIS 6171 (C.D. Cal., 2002) (holding plaintiffs’ immigration status was irrelevant to FLSA wage action and that Hoffman did not rule out recovery of back pay for work actually performed).

7 Singh, 214 F. Supp. 2d at 1062 (quoting Patel v. Quality Inn South, 846 F.2d 700, 704 (11th Cir. 1998)).

8 42 U.S.C. 2000e.

9 See EEOC Guideline No. 915.002 (located at www.eeoc.gov/policy/docs/national-origin.html).

10 See id.

11 364 F.3d 1057 (9th Cir. 2004), pet. for rehearing denied, 384 F.3d 822 (9th Cir. 2004) (Bea, dissenting), cert. denied, 125 S. Ct. 1603 (2005).

12 Id. at 1066.

13 Id. at 1070.