Amicus Curiae Brief — Hoffman Plastic Compounds, Inc. v. NLRB

No. 00-1595

IN THE

Supreme Court of the United States

HOFFMAN PLASTIC COMPOUND, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On Wait oF CERTIORARI TO THE UNITED States Court

OF APPEALS FOR THE District oF Coit MBIA CIRCUIT

BRIEF OF AMICI CURIAE STATES OF NEW YORK,

ARIZONA, CALIFORNIA, HAWAII, MASSACHUSETTS

AND WEST VIRGINIA AND COMMONWEALTH OF

PUERTO RICO IN SUPPORT OF RESPONDENT

Of Counsel: ELioT SPITZER

Carrun J. HALLIGAN* Attorney General of the

Solicitor General State of New York

120 Broadway

New York, New York 10271

(212) 416-8016

DANIEL SMIRLOCK

Deputy Solicitor General

M. Patricia SMITH

Assistant Attorney General

In Charge of Labor Bureau

SETH KUPFERBERG

Assistant Attorney General

*Counsel of Record

Attorneys for Amici Curiae States of New York, Arizona,

California, Hawati, Massachusetts and West Virginia

and Commonwealth of Puerto Rico

(Additional Attorneys Listed on Inside Cover)

171071

JANET NAPOLITANO

Attorney General of the

State of Arizona

Bit LOCKYER

Attorney General of the

State of California

Earw |. ANZAI

Attorney General of the

State of Hawaii

THOMAS F. REILLY

Attorney General of the

State of Massachusetts

Darrec_t V. McGraw, JR.

Attorney General of the

State of West Virginia

ANABELLE RODRIGUEZ

Attorney General of the

Commonwealth of Puerto Rico

i

TABLE OF CONTENTS

Table of Cited Authorities .....................

i ceeces

Summary of Argument .............ccccceeees

I The availability of back pay for

undocumented employees is crucial to the

effectiveness of state law. ...............

Il. State law grants undocumented workers a

back pay remedy in a variety of contexts, for

reasons that support an affirmance of the

DT epuceeeeeceecensceeeses

A. Courts applying state law in a variety of

contexts have permitted back pay awards

to undocumented workers. ..........

B. The decision below should be upheld for

reasons reflected in the state-law

ee nna wen ceee

III. Federal law does not preempt state law

awarding back pay to undocumented workers.

eee eeeeneeeeeeee ee |

Page

13

TABLE OF CITED AUTHORITIES

Page

Cases:

Alvarez v. Sanchez, 482 N.Y.S.2d 184 (N.Y. App. Div.

SEED cecccevanceecscebepenvedestbeheces¢ 12

Arizona Farmworkers Union v. Phoenix Vegetable

Distributors, 747 P.2d 574 (Ariz. Ct. App. 1986)

Arteaga v. Literski, 265 N.W.2d 148 (Wis. 1978) .. 9, 14

Artiga v. M.A. Patout & Son, 671 So. 2d 1138 (La.

Ge SN DEED ehcsnccucscdctactduadsenvess 10

GREED scvcdecccecccscanceeteceshesacdaces 17

Catalanotto v. Palazzolo, 259 N.Y.S.2d 473 (N.Y.

ub ak GHEE 06k céncutconsueceudnbaedia 8

Cenvill Development Corp. v. Candelo, 478 So 2d

1168 (Pile. Ct. App. 1968S) ......ccccccccceees 10

Champion Auto Body v. Indus. Claim Appeals Office,

950 P.2d 671 (Colo. Ct. App. 1997) ........... 10

Commercial Cleaning Services, L.L.C. v. Colin

Service Systems, Inc., _ F.3d ___, 2001 U.S. App.

LEXIS 25170 (2d Cir., Nov. 15, 2001) ........ 5

Commercial Standard Fire & Marine Co. v. Galindo,

484 S.W.2d 635 (Tex. Civ. App. 1972) ........ 10

iii

Cited Authorities

Page

Contreras v. Corinthian Vigor Ins. Brokerage, 25

F. Supp. 2d 1053 (N.D. Cal. 1998) ........... 12

Cush-Crawford v. Adchem Corp., _ F.3d __ 2001,

U.S. App. LEXIS 24806 (2d Cir., Nov. 16, 2001)

POP er eT eee eT PPO TT ToT ETT TTT OT TT TTT TTT ET 17

De Canas v. Bica, 424 U.S. 351 (1976) .......... 15

Del Taco v. Workers’ Compensation Appeal Board,

94 Cal. Rptr. 2d 825 (Cal. Ct. App. 2000) ...... 10

Dowling v. Slotnik, 712 A.2d 396 (Conn. 1998) .. 10, 11, 14

EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir.

DED. epdeutineceaneceesevesountascoadies 12

EEOC vy. Tortilleria “La Mejor,” 758 F. Supp. 585 :

DEC CED ccocgueseduedsuceceehesess 12

Felix v. State ex rel. Safety & Compensation Division,

986 P.2d 161 (Wyo. 1999) ............. eee 10

Fresh International Corp. v. ALRB, 805 F.2d 1353

LS rer rrr TT TT rr 6

Gates v. Rivers Constr. Co., 515 P.2d 1020 (Alaska

DED Skgubeceddstéveseuncesedicidens 8, 9, 14, 15

Iowa Erosion Control, Inc. v. Sanchez, 599 N.W.2d

PERE eccocnecéccucoeseccesccees 10

Janusis v. Long, 188 N.E. 228 (Mass. 1933) ...... 14

iv

Cited Authorities

La Crepe-Number 3 Litd., 36 SLRB 52 (1973) .... 13

Lang v. Landeros, 918 P.2d 404 (Okla. Ct. App. 1996)

xclenenetnctosddekeedeekessinaseeodaune 10

Luo Yu Jie v. Liang Tai Knitwear Co., 107 Cal. Rptr.

26 GSS Gee. Ch. Aa. BOGE) occcccccccccccccs 16

Maldonado vy. Allstate Insurance Co., 789 So. 2d 464

Gee, Been. GR. BO, BSED ccccccaccocccevcecs 8

McKennon v. Nashville Banner Publishing Co., 513

EE bb.cGecu bed oss dotckeeneessas 15

Mendoza v. Monmouth Recycling Corp., 672 A.2d

221 (N.J. Super. Ct. App. Div. 1996) ....... 10, 11, 15

Montero v. INS, 124 F.3d 381 (2d Cir. 1997) ..... 5

Montoya v. Gateway Insurance Co., 401 A.2d 1102

as EL Gh GE kwh weccdscsecbscusses 8,9,14

Murillo v. Rite Stuff Foods, Inc., 77 Cal. Rptr. 2d 12

Ee Gs SEE GdvGuncédentcnacecaduxes 12

Nizamuddowlah v. Bengal Cabaret, Inc., 415

N.Y.S.2d 685 (N.Y. App. Div. 1979) .......... 12

NLRB vy. Apollo Tire Co., 604 F.2d 1180 (9th Cir.

SUED Sasodseceeseanddeeudbusadecdbsdveks 16

Patel v. Quality Inn South, 846 F.2d 700 (11th Cir.

SOU abeecacscecséavaiensssd cheebantbabnee 12

Vv

Cited Authorities

—_ Page

Peterson v. Neme, 281 S.E.2d 869 (Va. 1981) ....8, 9, 14

Phillip D. Bertelsen, Inc. v. ALRB, 29 Cal. Rptr. 2d

204 (Cal. Ct. App. 1994) 2.0... 0. cee eee eee — 43

Plyler v. Doe, 457 U.S. 202 (1982) ............-- 16

Public Administrator of Bronx County v. Equitable

Life Assurance Society, 595 N.Y.S.2d 478 (N.Y.

GR TOR. TES o cc cccccvcqcecccsescesccses 8

Reinforced Earth Co. v. Workers’ Compensation

Appeal Board, 749 A.2d 1036 (Pa. Commw. Ct.

Dy cebvhecsentsanenectbcdbes senedtecss 10, 11

Rigi Agricultural Services, Inc., 11 ALRB No. 27

DD ne bebenctaveudseeseneseesnegassenss 13

Rios v. Ryan, Inc., 542 S$.E.2d 790 (Va. Ct. App. 2001)

kbs banseeeneueuEebenactaeeeseesecess 10, 11

Rios v. Steamfitters Local 638, 860 F.2d 1168 (2d

BL PED cedoccéuececvegecesdsocnndsececes 12

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) .....

i citiecudhedithdeeadedecdeds 1, 2, 7, 8, 12, 16, 17

Tarango v. State Indus. Ins. System, 25 P.3d 175 (Nev.

DEE woustedecensucneséeenéncevcencseses 10

Testa v. Sorrento Restaurant, Inc., 197 N.Y.S.2d 560

(N.Y. App. Div. 1960) ..........005- eee eeeee 10, 11

vi

Cited Authorities

Torres v. Sierra, 553 P.2d 72. (N.M. Ct. App. 1976)

Urrea v. New England Tea & Coffee Co., 2000 Mass.

Super. Ct. LEXIS 690 (Mass. Super., Sept. 1,

DED -aedvensiebnesesseks sesaenasneunens:

Statutes:

Cal. Lab. Code §§ 1140-1166 (Deering 2001) ....

POs OF ED nc bcedecccubsccousesaes

le Os SEED iv occcunadssiesecesavens

DOs OF SU sc cccccrevotedenenéunesends

Ds SUED Seed oceccccneVencosececeecss

DOs Pc ocancnccssuveeneseoancheat

Dee Se OD ecb ect dedesseeeccevesesees

PU OUTED cccccéices cossetecevésceds

Other Authorities:

EEOC’s “Enforcement Guidance on Remedies

Available to Undocumented Workers Under

Federal Employment Discrimination Laws,”

Seen Ge Ee SEEOD ces cccccccseceeses

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208,

SPE eccksbsdhisdeudh bedbedsetess

12

vil

Cited Authorities

“INS Releases Updated Estimates of U.S. Illegal

Population,” http://www.ins.gov/graphics/public

affairs/newsrels/illegalhtm .................

5-97 Arthur Larson & Lex K. Larson, Larson's

Workers’ Compensation Law § 97.07 (2001) ...

Philip L. Martin, Promises to Keep: Collective

Bargaining in California Agriculture (1996) ...

Personal Responsibility and Work Opportunity

Reconciliation Act of 1996, Pub. L. No. 104-193,

PE EE a ceeeeedevoteessensesdeeeces

U.S. Dep’t of Labor, Findings from the National

Agricultural Workers Survey (NAWS) 1997-1998:

A Demographic and Employment Profile of United

States Farmworkers (March 2000), http://www.

dol.gov/asp/programs/agworker/report_8.pdf ...

USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115

el a ie ce eo i ad wa

Page

10

17

17

|

STATEMENT OF INTEREST

The States of New York, Arizona, California, Hawaii,

Massachusetts and West Virginia and the Commonwealth of

Puerto Rico, through their attorneys general, respectfully submit

this amicus curiae brief. Amici include high-immigration states

that are believed to have most of the United States’

undocumerted population.' These states have a strong interest

in the vigorous enforcement of federal labor law, as applied to

both lawful and undocumented workers.

Federal labor law, as well as other federal statutes regulating

workplace conditions, operates alongside state laws to ensure

adequate protection of employees in the workplace. If the federal

government is prohibited from awarding back pay remedies to

undocumented workers, employers who hire such workers will

be able to violate the National Labor Relations Act with impunity

— aresult that will have particularly unfortunate consequences

in industries with a significant proportion of undocumented

employees. ae

The amici states also have a vital interest in enforcing their

own employment and other laws, which have always been

recognized as within the states’ police powers. Remedies

available under such state laws typically include back pay for

employees who have been fired illegally. Especially since this

Court decided Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984),

and Congress enacted the Immigration Reform and Control Act

of 1986 (“IRCA”), courts have weighed both immigration law

1. The Immigration and Naturalization Service (“INS”) estimates

that as of October 1996, there were five million illegal residents in the

United States. The eight states that the INS believes had the largest

undocumented populations were California (2 million’ 1exas (700,000),

New York (540,000), Florida (350,000), illinois (290,000), New Jersey

(135,000), Arizona (115,000) and Massachusetts (85,000). “INS Releases

Updated Estimates of U.S. Illegal Population,” http://www.ins.gov/

graphics/publicaffairs/newsrels/illegal.htm.

2

and state statutes and often concluded that state law requires

the availability of back pay or other damages — even for periods

when an alien was not legally authorized to work.

Although the sole question in this case involves the

discretion of the federal National Labor Relations Board

(“NLRB” or “Board”) to provide back pay under federal law,

petitioner wrongly implies that Sure-7an or IRCA bars all back

pay awards to undocumented aliens.’ Should petitioner prevail

on the central issue in this case, harmful consequences for state

law enforcement could result. Courts could conclude that a ruling

by this Court foreclosing NLRB awards to undocumented

workers based on the balance of public policies under federal

law extends to the states as well. Such an outcome would

severely jeopardize the ability of states to enforce minimum

wage, safety, equal employment and other state laws against

the many employers whose workers are undocumented. It would

give such firms a competitive edge against employers that are

more scrupulous, and would infringe state sovereignty.

Regardless of the outcome of this case, courts applying state

statutes that differ from the NLRA should remain free to balance

the equities in different ways, as they have in the past. As long

as federal immigration law does not prohibit awards of back

pay to undocumented workers who are unlawfully discharged

— which, as demonstrated by the United States and various

amici, it does not — the states, in the exercise of their police

and sovereign powers, must remain free to strike their own policy

balance.

2. See, e.g., Petitioner’s Brief at 7 (Sure-Tan held undocumented

workers may not “recover backpay as compensation for an unlawful

discharge”), 8 (Sure-Tan “recognized that the discharged employees

would very likely be left without any remedy whatsoever”),

10 (undocumented aliens are “not entitled to backpay”), 20 (“Immigration

Laws Prohibit an Award of Backpay”), and 28 (undocumented workers

are “not eligible for an award of backpay’”).

3

SUMMARY OF ARGUMENT

If federal and state laws protecting labor standards and

prohibiting employment discrimination are to be effective, the

tribunals that enforce them must have the power to consider

back pay awards to undocumented workers. Despite IRCA,

numerous undocumented employees work in the amici states.

Their presence is especially significant in particular areas and

occupations. In many industries, state employment statutes

would be rendered meaningless if no back pay remedy for

violations were available to undocumented workers.

Enforcement of these laws depends on cooperation from

employees, which is difficult enough to obtain from workers

subject to deportation. If undocumented workers were foreclosed

from monetary remedies it would be impossible to obtain their

assistance in law enforcement investigations, and state laws that

protect both documented and undocumented employees could

not be enforced.

State law routinely grants undocumented workers a back

pay remedy in a variety of contexts. In many state tort and

contract cases, for example, undocumented aliens have been

permitted to sue their employers and their lost wages have been

treated as damages, even though the aliens could not lawfully

have earned the same money as wages. Similarly, most state

workers’ compensation cases have found that undocumented

employees are entitled to workers’ compensation benefits, even

though not lawfully employed. Cases applying state and federal

labor standards and equal employment law have likewise

awarded back pay to undocumented aliens who have suffered

harm under the applicable statutes. And states with labor laws

that protect workers not covered by the NLRA apply those laws

to award back pay to undocumented workers who have been

fired illegally.

The rationale for awarding back pay to undocumented

workers set forth in these state law cases applies equally to the

4

present case. Like state statutes supporting back pay awards,

the NLRA does not distinguish documented from undocumented

employees. State courts have likewise recognized that providing

undocumented workers a back pay award gives wronged

individuals the only possible remedy, while also protecting law-

abiding employers from unfair competition. Moreover, as

decisions applying state laws recognize, prohibiting back pay

remedies for undocumented workers would undermine

immigration policy by encouraging employers to hire

undocumented aliens, and would also undermine labor policy

by leaving employers’ legal violations unpunished.

Regardless of the outcome of this case, this Court should

clarify that federal law does not preempt state law awarding

back pay to undocumented workers. States are free to regulate

these employees unless such regulation clearly conflicts with

federal law. Neither immigration law nor any other federal law

creates such a conflict.

ARGUMENT

I. The availability of back pay for undocumented

employees is crucial to the effectiveness of state law.

As their States’ chief law enforcement officers, amici

support the availability of back pay for undocumented

employees. Approximately five million undocumented aliens

reside in the United States.’ Amici do not condone the

presentation of false documents or other violations of

immigration law. Such misconduct certainly subjects those aliens

to deportation and criminal prosecution, but it should not result

in denial of redress for acts whose wrongfulness was unrelated

to an employee’s status. Nor should it give employers a free

pass for unrelated wrongdoing. To do so is unfair not only to

3. See supra at n.1.

—_—_—

5

the aliens, but also to other employees, whose collective legal

protection is undercut, and to employers that obey the law.‘

Furthermore, enforcement of employment law, including

minimum wage, occupational safety and many other laws,

depends on cooperation from employees. Such cooperation is

difficult enough to obtain from workers who fear deportation

that will proceed, if warranted by immigration law, regardless

of an employer’s misconduct. Breach of laws that protect

undocumented employees would never be reported if these

workers were also foreclosed from statutory remedies. In many

industries the effect would be the curtailment or effective

elimination of minimum wage, safety and other important laws.

The states’ ability to enforce their employment laws — which

necessitates the availability of a back pay remedy — should not

be thwarted simply because of an employee’s undocumented

status. Cf, Montero v. INS, 124 F.3d 381, 384-85 (2d Cir. 1997)

(enforcement of immigration law should not be impeded by

labor law violation of an employer that illegally called in the

INS).

Initiatives to enforce employment laws undertaken by

various amici states demonstrate the critical importance of back

pay remedies. For example, a recent investigation of New York

City’s greengroceries revealed that workers, mostly immigrants

from Mexico, were paid as little as $2.61 an hour for work weeks

as long as 84 hours, when federal and state minimum wage

laws require $5.15 per hour and time-and-a-half for work over

40 hours. Many workers are believed to be undocumented, and

securing their cooperation during the investigation would have

been impossible if they were ineligible for monetary remedies.

State-court lawsuits filed by the New York Attorney General to

4. That hiring undocumented workers in order to pay less than the

prevailing wage can directly harm competing employers was _ ently

recognized in Commercial Cleaning Services, L.L.C. v. Colin Service

Systems, Inc., _ F.3d ___, 2001 U.S. App. LEXIS 25170 at *17-*19 (2d

Cir., Nov. 15, 2001).

6

enforce minimum wage laws resulted in the recovery of over

$600,000 for underpaid workers. Without a back pay remedy,

New York’s greengroceries would effectively be placed outside

the reach of the minimum wage laws.

California, which has the largest number of undocumented

residents among the fifty states, has similarly found the

availability of back pay remedies essential to effective

enforcement of state labor laws. The California Agricultural

Labor Relations Board (ALRB) enforces the Agricultural Labor

Relations Act (ALRA), which affords farm workers rights

analogous to those provided to other workers by the NLRA.

Cal. Lab. Code §§ 1140-1166 (Deering 2001); see also Fresh

International Corp. v. ALRB, 805 F.2d 1353, 1358-60 (9th Cir.

1986) (describing enforcement of ALRA as important state

interest). California has the largest agricultural workforce in

the United States, including an estimated 900,000 individuals

each year. See Philip L. Martin, Promises to Keep: Collective

Bargaining in California Agriculture (1996) at 20, 40. According

to the United States Department of Labor, approximately 52

percent of farm workers in the United States in 1997-1998 were

undocumented,’ and the ALRB believes that the proportion of

undocumented farm workers in California likely exceeds this

level. Remedies available under the ALRA for unfair labor

practices are generally restricted to cease-and-desist orders, back

pay, and reinstatement. In light of the substantial proportion of

undocumented workers in California’s agricultural sector, the

inability to award back pay would deprive the ALRB of any

meaningful remedies with which to enforce the law, and render

the ALRA a virtual nullity.

In Massachusetts, the Attorney General’s Office has

investigated a significant number of wage violations involving

5. U.S. Dep’t of Labor, Findings from the National Agricultural

Workers Survey (NAWS) 1997-1998: A Demographic and Employment

Profile of United States Farmworkers (March 2000), http://www.dol.gov/

asp/programs/agworker/report_8.pdf, at 22.

7

immigrants in the asbestos remediation industry, illustrating the

importance of employee cooperation and a back pay remedy to

enforcement of safety and environmental laws. Advanced

Building Systems, Inc., an asbestos removal firm, was charged

with failure to pay overtime to 97 immigrant employees, many

of whom were most likely undocumented. The company had

failed to list the immigrant workers on its payroll records.

Because of the missing or false information about the identities

of many immigrant employees, it appears that many had never

been legally licensed to handle asbestos. The Massachusetts

Attorney General is currently involved in numerous cases against

other asbestos removal contractors that failed to pay immigrant

employees properly.

Il. State law grants undocumented workers a back pay

remedy in a variety of contexts, for reasons that support

an affirmance of the decision below.

In dealing with the back pay claims of undocumented

workers, the states have usually followed an approach similar

to that applied under the NLRA in Sure-7an, which held that

“{cjounterintuitive though it may be,” there was no conflict

between the mandate of immigration law and legal protection

for such workers under the NLRA. 467 U.S. at 891. These cases

arise in a variety of contexts, and reflect considerations that

should likewise lead this court to affirm the decision below.

A. Courts applying state law in a variety of contexts

have permitted back pay awards to undocumented

workers.

Decisions in several different areas of state law support the

availability of back pay awards to undocumented employees.

State tort and contract cases. In many state tort and contract

cases brought by undocumented aliens, lost wages have been

treated as damages. While some, but not all, of these cases

antedate Sure-Tan, their reasoning remains relevant to the

question before the Court. State courts have rejected claims that

general language governing lawsuits excludes undocumented

workers for much the same reasons Sure- Tan refused to exclude

them from the term “employee.” These state decisions include,

for example, a decision by the Alaska Supreme Court allowing

an undocumented worker’s contract suit for unpaid wages,

se2 Gates v. Rivers Constr. Co., 515 P.2d 1020 (Alaska 1973),

and decisions from New Jersey, New York, and Virginia courts

holding that undocumented workers or their heirs could

be awarded wages lost because of accidents or injuries.

See Montoya, 401 A.2d at 1104-06; Public Administrator of

Bronx County v. Equitable Life Assurance Society, 595 N.Y.S.2d

478 (N.Y. App. Div. 1993); Peterson v. Neme, 281 S.E.2d 869,

872 (Va. 1981). State courts have thus allowed undocumented

aliens to receive as damages money they could not lawfully

have earned as wages.

The reasons given by state courts in support of these

determinations to award damages for lost wages fall into three

categories: statutory language, fairness, aad the goals of

immigration policy. For example, in permitting an

undocumented worker to sue for promised wages even though

most illegal contracts are unenforceable, the Alaska Supreme

Court pointed to each of these rationales:

6. E.g., Montoya v. Gateway Insurance Co., 401 A.2d 1102, 1105-

06 (N.J. Super. Ct. 1979) (illegal employee an “income producer” and

“in an occupational status” within the meaning of insurance policy);

Maldonado v. Alistate Insurance Co., 789 So. 24 464, 468-70 (Fla. Dist.

Ct. App. 2001) (illegal alien a “resident” within the meaning of no-fault

insurance statute); Jorres v. Sierra, 553 P.2d 721, 724 (N.M. Ct. App.

1976) (illegal alien a “person” within the meaning of Wrongful Death

Act); Catalanotto v. Palazzolo, 259 N.Y.S.2d 473, 475-77 (N.Y. Sup.

Ct. 1965) (illegal alien a “qualified person” within the meaning of

uninsured motorist statute).

9

First, ... the statute itself does not specifically

declare the labor or service contracts of aliens. . . to

be void. ... Second, ... a harsh and undesirable

consequence. . . should be countenanced only when

clearly demonstrated to have been intended by the

legislature. Third, . . . the safeguarding of American

labor ... would not be furthered by permitting

employers ... to refuse to pay [undocumented

workers].... [T]o so hold could well have the

opposite effect. . . .

Gates, 515 P.2d at 1021-02. Other courts have focused

specifically on the fact that the availability of back pay damages

does not impede immigration policy. The Virginia Supreme

Court explained that “a person seeks a job because he needs to

earn a living, not because he wants to become legally eligible

to recover wage losses.” Peterson, 281 S.E.2d at 872. A New

Jersey court stressed the same point: While no one “illegally

enters this country for the purpose of initiating litigation,”

denying remedies could increase illegal entries as employers

exploit “the alien’s inability to lodge claims against them for

wages or on account of injuries sustained.” Montoya, 401 A.2d

at 1104; see also Arteaga v. Literski, 265 N.W.2d 148, 150 (Wis.

1978) (“It cannot be seriously argued that people enter this

country illegally so they can recover for an injury”).

State workers’ compensation cases. As with state tort and

contract suits, most state workers’ compensation cases have held

that undocumented employees can receive monetary relief. This

is so even though entitlement to lost wages in workers’

compensation claims arises from a state statute specifically

governing “workers” or “employees,” a category into which

undocumented employees would not have fallen if they had

obeyed the law.

The prevailing rule in state courts is that “the distinction

between alien and citizen is of no relevance to compensation

10

law.” 5-97 Arthur Larson & Lex K. Larson, Larson s Workers’

Compensation Law § 97.07 (2001). Moreover, courts expressly

considering the question have concluded that IRCA does not

preempt the application of state workers’ compensation law to

undocumented workers.’ Accordingly, workers’ compensation

benefits are available to illegal employees in most states.* Indeed,

when Virginia’s Supreme Court found undocumented employees

excluded from workers’ compensation, the legislature amended

the law to cover “aliens and minors, . . . whether lawfully or

unlawfully employed.” See Rios v. Ryan, Inc., 542 S.E.2d 790,

792 n.2 and 794 (Annunziata, J., concurring) (Va. Ct. App. 2001)

(finding amendment not retroactive).

As with cases providing for the award of lost wages in tort

and contract claims, state courts refer to statutory language,

fairness, and immigration policy in explaining why lost wages

7. See Dowling v. Slotnik, 712 A.2d 396, 402-05 (Conn. 1998);

Reinforced Earth Co. v. Workers 'Compensation Appeal Board, 749 A.2d

1036, 1038 (Pa. Commw. Ct. 2000). Cf Jowa Erosion Control, Inc. v.

Sanchez, 599 N.W.2d 711, 715 (lowa 1999) (IRCA’s purpose “was not

to preempt state laws benefitting undocumented aliens”). Colorado and

Nevada courts likewise concluded that IRCA does not bar payment of

benefits to undocumented employees. Champion Auto Body v. Indus.

Ciaim Appeals Office, 950 P.2d 671, 673 (Colo. Ct. App. 1997); Tarango

v. State Indus. Ins. System, 25 P.3d 175, 178-79 (Nev. 2001).

8. See, e.g., Del Taco v. Workers Compensation Appeal Board, 94

Cal. Rptr. 2d 825, 828 (Cal. Ct. App. 2000); Artiga v. M.A. Patout &

Son, 671 So. 2d 1138, 1139 (La. Ct. App. 1996); Mendoza v. Monmouth

Recycling Corp., 672 A.2d 221, 224 (N.J. Super. Ct. App. Div. 1996);

Testa v. Sorrento Restaurant, Inc., 197 N.Y.S.2d 560, 562 (N.Y. App.

Div. 1960); Lang v. Landeros, 918 P.2d 404, 406 (Okla. Ct. App. 1996);

Commercial Standard Fire & Marine Co. v. Galindo, 484 S.W.2d 635,

636-37 (Tex. Civ. App. 1972). But see Felix v. State ex rel. Safety &

Compensation Division, 986 P.2d 161, 163-64 (Wyo. 1999) (Wyoming

workers’ compensation statute excludes undocumented employees);

Cenvill Development Corp. v. Candelo, 478 So. 2d 1168, 1170 (Fla. Ct.

App. 1985) (employer estopped from denying coverage “only where he

knew or should have known of the true status of the employee”).

11

are likewise available in workers’ compensation actions.

The text of state laws supports such an award because among

states whose courts have considered the issue, only in Wyoming

does statutory language differentiate undocumented from other

employees. See Rios, 542 S.E.2d at 794 n.3 (Annunziata, J.,

concurring) (“All but one of the several jurisdictions . . . that

have considered the question have held that a claimant’s illegal

alien status does not affect or preclude workers’ compensation

benefit awards.”) As for fairness considerations, workers’

compensation replaces tort claims, whose viability, as discussed

above, would not be affected by a victim’s illegal status.

See Mendoza, 672 A.2d at 225 (no basis to deny “the

substitutionary remedy’”).’ Finally, courts have generally agreed

that excluding the undocumented from statutory remedies is

more likely to increase than to discourage illegal immigration,

while also creating other undesirable incentives. While benefits

in case of injury “realistically cannot be described as an incentive

for undocumented aliens to enter this country illegally,” denying

coverage would create “a financial incentive for unscrupulous

employers” to recruit them. Dowling, 712 A.2d at 404. See also

Mendoza, 672 A.2d at 225 (denying coverage would “provide a

disincentive to assuring workplace safety” and “have the further

undesirable effect of encouraging employers to hire illegal

aliens”); Reinforced Earth, 749 A.2d at 1039-40 (employers

might “seek out illegal aliens . . . because they will not be forced

to insure against or absorb the costs of work-related injuries”).

Labor standards and equal employment law. A back pay

remedy is also available under many state labor standards and

equal employment laws. In part because most state labor

standards investigations are settled at the administrative level

based on the availability of remedies that include back pay,

9. States have similarly recognized that undocumented and

underage employees resemble each other in being legally barred from

work yet vulnerable, if they work anyway, to unrelated injunes for which

a remedy should be awarded. See, e.g., Testa, 197 N.Y.S.2d at 562;

Rios, 542 S.E.2d at 792 n.2.

12

there are few reported decisions applying state labor standards

and equal opportunity statutes, but most states have laws in

these areas that are similar to their federal counterparts.

Undocumented aliens have been awarded back pay under the

federal Fair Labor Standards Act, after as well as before

Sure-Tan and IRCA."° The same is true under state minimum

wage laws. See, e.g., Nizamuddowlah v. Bengal Cabaret, Inc.,

415 N.Y.S.2d 685 (N.Y. App. Div. 1979). Equal opportunity

law has also been invoked by undocumented employees,'' who

are especially vulnerable to sexual harassment. Back pay is a

significant potential remedy, because harassment often ends in

the victim’s direct or constructive discharge."

States with labor laws that protect workers not covered by

the NLRA likewise extend those laws to undocumented workers.

Although the NLRA preempts state labor law, a number of states

have labor statutes similar to the NLRA that protect workers

not w'thin the NLRA’s scope, most notably agricultural workers.

State tribunals have found illegally fired undocumented workers

entitled to back pay under these statutes. See Arizona

10. See, e.g., Patel v. Quality Inn South, 846 F.2d 700, 704-06

(11th Cir. 1988); Contreras v. Corinthian Vigor Ins. Brokerage, 25 F.

Supp. 2d 1053, 1056-58 (N.D. Cal. 1998); Alvarez v. Sanchez, 482

N.Y.S.2d 184 (N.Y. App. Div. 1984).

11. See, e.g., Rios v. Steamfitters Local 638, 860 F.2d 1168, 1171-

73 (2d Cir. 1988); EEOC v. Tortilleria “La Mejor,” 758 F. Supp. 585,

587-94 (E.D. Cal. 1991). The EEOC’s “Enforcement Guidance on

Remedies Available to Undocumented Workers Under Federal

Employment Discrimination Laws,” N-915.040 (Oct. 26, 1999), at nn.32-

35 and accompanying text, takes an approach like the NLRB’s, barring

a reinstatement order for a discriminatee known to be forbidden to work,

but not back pay.

12. See, e.g., EEOC v. Hacienda Hotel, 881 F.2d 1504, 1507-09

(9th Cir. 1989); Murillo v. Rite Stuff Foods, Inc., 77 Cal. Rptr. 2d 12, 15

(Cal. Ct. App. 1998); Urrea v. New England Tea & Coffee Co., 2000

Mass. Super. Ct. LEXIS 690 (Mass. Super., Sept. 1, 2000) at *2.

13

Farmworkers Union v. Phoenix Vegetable Distributors, 747 P.2d

574, 578 (Ariz. Ct. App. 1986) (enforcing Arizona Agricultural

Employment Relations Board determination); Phillip D.

Bertelsen, Inc. v. ALRB, 29 Cal. Rptr. 2d 204, 209 (Cal. Ct.

App. 1994) (enforcing ALRB determination); Rigi Agricultural

Services, Inc., 11 ALRB No. 27 (1985); La Crepe-Number 3

Ltd., 36 SLRB 52, 53 (1973) (New York State Labor Relations

Board decision). While these cases involved pre-IRCA conduct,

IRCA, as discussed in Point III, does not supersede the holdings.

It forbids hiring workers the employer knows to be

undocumented, not paying wages or back pay for a period when

the employer did not know the worker’s immigration status.

B. The decision below should be upheld for reasons

reflected in the state-law decisions.

Amici states adopt the arguments of the United States

Solicitor General that the decision below should be affirmed.

Moreover, respondent’s argument that the NLRA permits

undocumented employees to receive back pay but not

reinstatement to work from which they are foreclosed by federal

law is well within the mainstream of interpretation of other

employment statutes and state common law.

The reasoning relied on by state courts to uphold back pay

remedies for undocumented workers — regarding statutory

language, fairness, and immigration policy — is relevant to the

construction of the NLRA. First, the text of the NLRA and

relevant immigration statutes does not foreclose the award of

back pay. Like state statutes such as the agricultural labor law

applied in Bertelsen, 29 Cal. Rptr. 2d at 204, the NLRA does

not distinguish documented from undocumented employees.

Congress, though well aware that there are many undocumented

workers, has never changed that. As the D.C. Circuit held in the

present case, “IRCA neither amends nor repeals the NLRA or

any other labor law,” 237 F.3d at 646, and the same is true of

later amendments to immigration law discussed in Point III

below.

14

Second, state courts recognize that fairness weighs strongly

in favor of authorizing back pay remedies for workers if they

are wronged, regardless of their immigration status, see, e.g.,

Gates, 515 P.2d at 1021-22, just as in other contexts

undocumented aliens are not wholly “beyond the protection of

the law.” Janusis v. Long, 188 N.E. 228, 230-32 (Mass. 1933)

(alien’s illegal presence no defense to tort suit). Cf Petitioner’s

Br. at 8 (undocumented workers should “be left without any

remedy whatsoever”). Eliminating an otherwise-available

reinstatement remedy for a worker who has presented fraudulent

documents to obtain employment — to say nothing of the

prospect of deportation and criminal prosecution — sufficiently

penalizes such misconduct. Elimination of back pay would serve

only to undermine a statute that protects all employees,

documented and undocumented, as well as protecting law-

abiding employers from unfair competition.

Third, this Court’s reconciliation of the NLRA and IRCA

should be informed by the state courts’ insight that back pay

“realistically cannot be described as an incentive for

undocumented aliens <o enter this country illegally.” Dowling,

212 A.2d at 404. “[A] person seeks a job because he needs to

earn a living, not because he wants to become legally eligible

to recover wage losses.” Peterson, 281 S.E.2d at 872. Nor can

it “be seriously argued that people enter this country illegally

so they can recover for an injury that will be inflicted upon

them later.” Arteaga, 265 N.W.2d at 150; see also Montoya,

401 A.2d at 1104 (no one “illegally enters this country for the

purpose of initiating litigation’”’).

The remedy uphela by the D.C. Circuit will not undermine

immigration policy by increasing the employment of

undocumented workers. Striking it down, however, will

encourage employers to hire undocumented aliens who cannot

“lodge claims against them for wages or on account of injuries

sustained,” Montoya, 401 A.2d at 1104, and “to enter into the

very type of contracts sought to be prevented,” Gates, 515 P.2d

15

at 1022. That labor policy would also be undermined by such a

ruling is self-evident. Even with respect to employers not seeking

to punish pro-union workers, a rule barring back pay would, as

this Court explained in reference to the Age Discrimination in

Employment Act, undermine the “objective of forcing employers

to consider and examine their motivations” before acting.

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352,

362 (1995).

Reversal of the D.C. Circuit would thus undermine two

important policies, reflected in both labor law and immigration

law, just as making the undocumented ineligible for workers’

compensation would “provide a disincentive to assuring

workplace safety” and “have the further undesirable effect of

encouraging employers to hire illegal aliens.” Mendoza, 672

A.2d at 225. For these reasons, as well as those set forth by the

United States Solicitor General, the D.C. Circuit should be

affirmed.

Ill. Federal law does not preempt state law awarding back

pay to undocumented workers.

To preserve the wide array of state workplace enforcement

mechanisms that rely on back pay awards, this Court should

clarify that federal law does not preempt state statutes permitting

undocumented workers to recover back pay. As recognized in

De Canas v. Bica, 424 U.S. 351 (1976), states are free to regulate

even undocumented employees unless there is a clear conflict

with federal law. “(T]he fact that aliens are the subject of a

state statute does not render it a regulation of immigration.”

Id. at 355. Rather, state power to regulate employment extends

to undocumented workers unless there is a “specific indication

... that Congress intended” otherwise. Jd. at 358. Federal

immigration law provides no such indication.

In the absence of a Congressional mandate barring a

particular remedy for undocumented workers, states are free to

16

extend them the same remedies available to other employees

when the states deem it rational to do so. See Plyler v. Doe, 457

U.S. 202, 216 (1982) (“initial discretion to determine what is

‘different’ and what is ‘the same’ resides in the legislatures of

the States”). Most states deem undocumented workers to be

“the same” as other employees in various legal contexts. A state

can limit the remedies of undocumented workers; a few states

have, as discussed above. But federal immigration law does not

mandate such limitations, and this Court should not thwart the

intention of the states that permit back pay awards by imposing

a broad rule that would, as Justice Kennedy once put it, “leave

helpless the very persons who most need protection from

exploitative employer practices.” NLRB v. Apollo Tire Co., 604

F.2d 1180, 1184 (9th Cir. 1979) (Kennedy, J., concurring). Their

exclusion from back pay remedies, if it is to happen, must be

enacted by Congress or effected by individual states.

Petitioner’s brief wrongly implies that Sure-7an or IRCA

bars all back pay awards to undocumented aliens, see supra at

n.2, but immigration law plainly does not do so. IRCA forbids

an employer to hire someone it knows to be undocumented, but

nowhere does it prohibit the payment of back wages for a period

when the employer did not know the worker’s immigration

status. As the court below noted, “nothing in IRCA directly bars

such an award... . IRCA neither amends nor repeals the NLRA

or any other labor law.” 237 F.3d at 646 (relying upon legislative

history indicating that IRCA does not limit the discretion of

federal or state agencies). By contrast, IRCA provisions that

govern employer petitions to admit workers to the United States

and sanctions on those that hire undocumented workers do

expressly preempt state regulation. See 8 U.S.C. §§ 1188(h)(2)

and 1324a(h)(2). IRCA should not be read “as preempting

anything but the laws specifically mentioned.” Luo Yu Jie v.

Liang Tai Knitwear Co., 107 Cal. Rptr. 2d 682, 690 (Cal. Ct.

App. 2001).

~—

17

Three post-IRCA changes to immigration law have only

strengthened this conclusion by toughening sanctions on illegal

immigration without barring back pay for undocumented

workers. See USA PATRIOT Act of 2001, Pub. L. No. 107-56,

115 Stat. 272; Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009;

Personal Responsibility and Work Opportunity Reconciliation

Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (the “Welfare

Reform Act”). Moreover, it is clear that when Congress wanted

to restrict protections available to certain classes of aliens, it

knew how to do so. For example, the Welfare Reform Act makes

most aliens ineligible for “pubiic benefits,” as expansively but

specifically defined by the statute, except “through the enactment

ofa State law after August 22, 1996 which affirmatively provides

for such eligibility.” 8 U.S.C. §§ 1611(a) and (c) and 1621(a),

(c) and (d). No analogous statutory provision bars or even

restricts undocumented aliens’ eligibility for back pay awards.

Nor does the reasoning of Sure-7an preclude an award of

back pay under state statutes. Sure-Tan was rooted in the rule

that NLRA back pay orders must “expunge only the actual, and

not merely speculative, consequences of the unfair labor

practices.” 467 U.S. at 900. State law, however, often allows

awards beyond actual damages. See, e.g., BMW of North

America, Inc. v. Gore, 517 U.S. 559, 568 (1996) (“States

necessarily have considerable flexibility in determining the level

of punitive damages that they will allow in different classes of

cases and in any particular case”); Cush-Crawford v. Adchem

Corp., __ F.3d __ 2001, U.S. App. LEXIS 24806 at *13-*16

(2d Cir., Nov. 16, 2001) (“no one common law rule”). The

significant point is that state law need not, and in some cases

clearly does not, limit damages as strictly as the NLRA.

Judge Sentelle, dissenting in this case, argued that “the logic

of’ IRCA cuts against awarding back pay that a worker “could

not lawfully earn.” 237 F.3d. at 651. Such “logic,” even if it had

persuasive force, is not a statutory ban that preempts state law

18

remedies, but a factor to be considered when enforcing actual

statutes: by the Board, for the NLRA; by state courts, for state

statutes. While this Court can properly correct the Board if it

wrongly balances competing public policies under federal law,

the states’ balancing of competing policies should not be

overridden even if it differs from the federal balance unless

federal law so requires, as it does not. Even if this Court were

to reverse under the NLRA, it should not prevent states, under

their own laws, from granting back pay or other appropriate

remedies to undocumented workers.

cement eee ee eee

CONCLUSION

For the foregoing reasons, as well as those stated by the

United States Solicitor General and other amici curiae, the

judgment of the court below should be affirmed.

Of Counsel:

Cartuin J. HALLIGAN*

Solicitor General

DANIEL SMIRLOCK

Deputy Solicitor General

M. Patricia SMITH

Assistant Attorney General

In Charge of Labor Bureau

SETH KUPFERBERG

Assistant Attorney General

*Counsel of Record

Respectfully submitted,

E.iot Spitzer

Attorney General of the

State of New York

120 Broadway

New York, New York 10271

(212) 416-8016

JANET NAPOLITANO

Attorney General of the

State of Arizona

Bitt Lockyer

Attorney General of the

State of California

Ear I. ANZAI

Attorney General of the

State of Hawaii

THomas F. REILLY

Attorney General of the

State of Massachusetts

DarreLt V. McGraw, JR.

Attorney General of the

State of West Virginia

ANABELLE RODRIGUEZ

Attorney General of the

Commonwealth of Puerto Rico

Attorneys for Amici Curiae States of New York, Arizona,

California, Hawaii, Massachusetts and West Virginia

and Commonwealth of Puerto Rico