Supreme Court Brief - Amici Curiae
Hoffman Plastic Board Compounds v. National Labor Relations Board
Michael Wishnie, Muzaffar Chishti, David Schulz, Jeffrey Drichta, David Dovdavany
December 10, 2001
The "good employer" amicus brief in Hoffman Plastic Compound, Inc. v. NLRB, No, 00-1595
The Supreme Court recently granted certiorari in a case challenging the authority of the National Labor Relations Board ("NLRB") to order backpay as a remedy for an unlawful discharge, when an employerís wrongful conduct involves an undocumented immigrant who was not authorized to work in the first place. A ruling exempting employers of undocumented immigrants from ordinary labor law liability would impose a significant competitive disadvantage on those employers who obey the labor laws, particularly in industries that typically employ significant numbers of immigrant workers. This is the argument made in the amicus brief submitted to the Supreme Court on behalf of employers, industry associations, business networks, chambers of commerce, organizations of small manufacturers, and a business-labor coalition. MPI's Senior Policy Analyst Muzaffar Chishti was part of the team of lawyers for the amici .
Hoffman Plastic Compound, Inc. ("Hoffman") produces polyvinyl chloride pellets. In January 1989, the company laid off several employees who had engaged in a union-organizing campaign at the plant. After the workers filed unfair labor practice charges, the NLRB found that Hoffman had indeed "discriminatorily selected union adherents for layoff." 306 N.L.R.B. 100, 100 (1992). Hoffman does not contest this finding before the Supreme Court.
During subsequent compliance proceedings, one of the laid off workers, Jose Castro, testified that he was an undocumented immigrant from Mexico. 314 N.L.R.B. 683, 685 (1994). The Board concluded that Castro was not eligible for reinstatement, but determined that he was eligible for a limited award of backpay, for the period from the date of his unlawful termination until the date that the employer learned of his undocumented status. In its analysis, the Board relied on its decision in A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408 (1995), enfíd, 134 F.3d 50 (2d Cir. 1997) (undocumented worker in United States eligible for backpay) and application of its after-acquired evidence rule. 326 N.L.R.B. 1060, 1061-62 (1998).
A divided panel of the Court of Appeals for the D.C. Circuit denied the employerís petition for review and granted the Boardís cross-application for enforcement. 208 F.3d 229 (D.C. Cir. 2000). The D.C. Circuit granted Hoffmanís petition for rehearing en banc, but then affirmed the panel decision and enforced the Boardís order. 237 F.3d 639 (D.C. Cir. 2001) (en banc). The Supreme Court granted certiorari on September 25, 2001.
Summary of the brief
The brief begins by endorsing the position of the Bush Administration in its June 2001 opposition to certiorari, namely that the Boardís decision correctly reconciles the labor and immigration statutes in this case.
The brief then emphasizes that law-abiding businesses and employers such as the amici are disadvantaged by unfair competition from rogue employers who hire undocumented immigrants and then claim exemption from the ordinary rules of the workplace -- avoiding the obligations to pay minimum wage and overtime, to refrain from unlawful discrimination, and to comply with health and safety laws. Such employers who violate labor laws and hire undocumented immigrants should not thereby be immune from the legal consequences of labor law violations. The Court should not construe the relevant statutory provisions so as to grant outlaw "sweatshops" and other scofflaw organizations a competitive advantage over mainstream employers who follow the rules of the workplace. (The brief notes that while some amici believe the labor laws should be reformed in a number of respects, but as long as such laws are in place, the costs of compliance must be borne evenly.)
The brief observes
that consideration of the impact of a ruling on business competition
is consistent with the approach regularly taken by lower federal
courts in reconciling labor and immigration statutes. See, e.g.,
NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50, 57
(2d Cir. 1997) (backpay for wrongfully discharged undocumented worker
"helps to ensure that employers who comply with [the prohibition
on employment of unauthorized workers] do not suffer a competitive
disadvantage for their obedience to the law").
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