In August of 2000, Guillermo Medellin, an undocumented immigrant from Mexico, was injured while working at a construction site in Boston. Unable to work due to his injury, Mr. Medellin applied for workers’ compensation benefits and prevailed at his initial administrative hearing despite the opposition of his employer, Cashman KPA, and the employer’s insurer. Not once did Mr. Medellin’s immigration status arise as an obstacle to his recovering benefits at the initial hearing. The law in Massachusetts, as in most other states, was clear: undocumented immigrants were covered by workers’ compensation on the same terms as any other worker. Two years later, however, Mr. Medellin’s undocumented status was the sole basis of an appeal by his employer to the Massachusetts Department of Industrial Accidents. What changed? In March 2002, the Supreme Court held in Hoffman Plastic Compounds, Inc. v. N.L.R.B. that an undocumented worker fired in retaliation for his support of union organizing at work was ineligible for backpay under the National Labor Relations Act (“NLRA”). The Court reasoned that an award of backpay to a worker not “available” to legally work in the United States was beyond the remedial discretion of the National Labor Relations Board (“NLRB”) because it conflicted with the Federal Immigration Reform and Control Act of 1986 (“IRCA”), which prohibits the employment of undocumented immigrants. It observed that an award of backpay to an undocumented worker “not only trivializes the immigration laws, it also encourages and condones future violations.” Notably, the undocumented worker in Hoffman had submitted false documents to obtain employment in violation of the IRCA’s employment verification provisions. The Court stated that it could not allow the Board to “award backpay to an illegal alien 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.” Employers have taken the Hoffman decision as a green light to contend that undocumented workers are without a range of state and federal workplace rights, including the right to receive workers’ compensation benefits after suffering a job-related injury. The majority of these challenges have failed. In the workers’ compensation context, for example, state courts and agencies have overwhelmingly upheld the rights of undocumented immigrants to receive benefits after Hoffman. Nevertheless, two state courts have relied on Hoffman to allow the suspension of wage-loss benefits under workers’ compensation laws for undocumented immigrants.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.