# Amicus Curiae Brief — Hoffman Plastic Compounds, Inc. v. NLRB > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0462%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2002 - **Citation:** 535 U.S. 137 ## Text No. 00-1595 C10 mol IN THE Supreme Court of the United States HOFFMAN PLASTIC COMPOUND, INC., Petitioner. v. NATIONAL LABOR RELATIONS BOARD, Respondent. On Wait or CERTIORARI TO THE Unitrep STaTes Court OF APPEALS FOR THE District oF Co_umBiA CIRCUIT Brief of Amici Curiae National Employment Law Project, Mexican American Legal Defense and Educational Fund, Asian American Legal Defense and Education Fund, Coalition for Humane Immigrant Rights of Los Angeles, et al. in Support of Respondent JAMES REIF REBECCA SMITH Counsel of Record NATIONAL EMPLOYMENT GLADSTEIN, Reif & MEGINNISS Law Project, INc. 817 Broadway, Sixth Floor 407 Adams Street, SE. Suite 203 New York, NY 10003 Olympia, WA 98501 (212) 228-9160 (360) 534-9160 JAMES WILLIAMS Leticia SAUCEDO CATHERINE K. RUCKELSHAUS JOSEPH BERRA NATIONAL EMPLOYMENT MEXICAN AMERICAN LEGAL DEFENSE Law Project, INc. AND EDUCATIONAL FUND 55 John Street, Seventh Floor 140 East Houston Street New York, NY 10038 San Antonio, TX 78205 (212) 285-3025 (210) 224-5476 Attorneys for Amici Curiae TABLE OF CONTENTS Table of Cited Authorities ..............050e005- Statement of Interest of Amici Curiae ........... — 4. & a en pebeceeoaeseegeees een eruneseeeseesee ees A. Unscrupulous Employers Use Threats of INS Raids to Chill Immigrants’ Exercise of Their Workplace Rights. ............-++eeees: i. Employers in many industries hire undocumented workers despite DEEL Svenaadekbdesdeaeetebenseses Retaliatory threats of INS raids are common when workers seek to enforce rights under the NLRA. ...........-- Employer retaliation is also common when workers seek to enforce wage and hour, discrimination, health and safety, and other employment rights. ........ B. Without Back Pay As a Deterrent, Employer Incentive to Hire and Abuse Casecnmentes Workers is High. ............seeeeeeees l. Employer sanctions provide no deterrent to employers who would retaliate. .... 12 19 21 Contents Page 2. In a scheme without back pay, retaliation imposes no cost on employers. ....... 24 > = left unremedied, employer retaliation against undocumented workers chills all WORDNET GHD, 5 oss ceec beeueey ue 25 ere ee 27 ili TABLE OF CITED AUTHORITIES Page Cases: Accent Maintenance Corp., 303 N.L.R.B. 294 Dee nébdavebteveraceeseoces 16 Ansoumaaa v. Gristede’s, No. 00-0253 (S.D.N_Y. i hobo eeécngucedescecoece 21 A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408 (1995), aff'd sub nom. NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997) i ce tedene sheeeeocceces 11, 14, 22, 24, 27 Breakfast Productions, Inc., 293 N.L.R.B. 607 DUE nh eh eeekedddebedoaccceccecces 16 Caffe Giovanni, Inc., 259 N.L.R.B. 233 (1981) ... 17 Consolidated Edison v. NLRB, 305 U.S. 197 EEE ES SO ee 24 Contreras v. Corinthian Vigor Insurance Brokerage, Inc., 25 F. Supp. 2d 1053 (N.D. Cal. 1998) .... 4,19 Corrugated Partitions West, Inc., 275 N.L.R.B. 894 DEE e Le pet eubeesecdccecesoccecse 17 DeCanas v. Bica, 424 U.S. 351 (1976) .......... 25 Del Rey Tortilleria, Inc., 272 N.L.R.B. 1106 (1984), order enforced by NLRB v. Del Rey Tortilleria, 823 F.2d 1125 (7th Cir. 1987) ..............4. 16 iv Cited Authorities Page Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115 See EEE aidenedesanctdbioaneedcaucswas 27, 28 Does I through XXIII v. Advanced Textile, 214 F.3d SOP EEE odoncbodeedkedés sek veda 20 Fuentes v. INS, 765 F.2d 886 (9th Cir. 1985), vacated as moot, 844 F.2d 699 (9th Cir. 1988) ......... 21 Futuramik Industries, Inc., 279 N.L.R.B. 185 SUPE cecdscncccdeesédeudsiadsacessdvekac 17 Hasa Chemical, Inc., 235 N.L.R.B. 903 (1978)... 17 Impact Industries, Inc., 285 N.L.R.B. 5 (1987), remanded, 293 N.L.R.B. 794 (1989) .......... 15 Impressive Textiles, 317 N.L.R.B. 8 (1995) ....... 15 John Dory Boat Works, inc., 229 N.L.R.B. 844 ec beed acnecccaiietessischadenl beuken 17 John Hancock Mut. Life Ins. Co. v. NLRB, 191 F.2d Sr es Gs IE dic 0 bcncachtostekecees 26 McKennon v. Nashville Banner Publishing Co., PEP a SEED écdUiecectnabtdhabucndie 26 Nash v. Florida Indus. Comm'n, 389 U.S. 235 GPE nv'vbi eed ddatendbddbacenieseenietaies 26 NLRB vy. Apollo Tire Co., 604 F.2d 1180 (9th Cir. DOU. Sodudnr dccccueusabbbeian keankae 16 —— v Cited Authorities Page Patel v. Quality Inn South, 660 F. Supp. 1528 (NLD. Ala. 1987) .......-2 cece eee eeeeeenees 21 Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. Pr been eee eneaeeeneeesreee ees 20, 21 Phelps Dodge Corp. v. NLRB, 313 U.S. 177 CIDE on cccccccccccccccccccsccovcsccccces 24 6 West Lid. Corp. v. NLRB, 237 F.3d 767 (7th Cir. BUD cccccccdss cedcdsvcvesccedsecccccccce 15 Sun Country Citrus, Inc., 268 N.L.R.B. 700 CBDBE 6 cccnccccccccccccccccpesccesoceces 17 Superior Truss & Panel, Inc., 334 N.L.R.B. 115 CRBGED 0c cgccccccccccccccccscceccecccoccse 18 Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ..... 13 United States v. Alzanki, 54 F.3d 994 (1st Cir. 1995), cert. denied, 516 U.S. 1111 (1996) ........... 19 Urrea v. New England Tea & Coffee Co., 2000 WL 1483215 (Mass. Super. 2000) ............+++- 19 Viracon, Inc., 256 N.L.R.B. 245 (1981) ......... 17 Statutes: 8 U.S.C. § 1324a(b)(1 (A) (1994) ......-- 20 eee. 22 29 U.S.C. § 151 (1994) ... 2.66. cece eee eens 12 vi Cited Authorities Page SOUBGE. BRR CIEE bcos deccccassveave 6 BP UDG. B ERED cc cescvcosacecscecs 6 Other Authorities: T. Alexander Aleinikoff, J/legal Employers, Am. Prospect, Dec. 4, 2000 ..............45. 14 ‘Deborah Alexander, Nebraska Beef Faces Federal Indictments, Omaha World-Herald, Dec. 7, I A tanita acta a a ae en ee ee ail 22 David Bacon, /mmigration Law — Bringing Back Sweatshop Conditions, Nov. 10, 1998, available at . 11 (May 6, 1996). Industries that employ large numbers of undocumented workers are also among the worst violators of labor and employment laws. A Department of Labor investigation-based survey of compliance in agriculture, focused on cucumbers, lettuce and onions, revealed that compliance with FLSA and the Migrant and Seasonal Agricultural Worker Protection Act in these commodities was “unacceptably low.” U.S. Department of Labor, Compliance Highlights, 1, 3 (Nov. 1999). In suburban New York, where large numbers of workers toil in landscape and small construction, restaurants, domestic service and building cleaning ~ Aarne srr u}ndocumented workers are the employees o in Re and abuses run high.” Jennifer Gordon, We Make the Road By Walking: Immigrant Workers, The Workplace Project, and The Struggle For Social Change, 30 Harv. C.R.-C.L. L. Rev. 407, 413 (1995). In their consideration of IRCA, both houses of Congress agreed that employers easily abuse undocumented workers. Each house concluded that undocumented immigrants, “out of desperation, will work in substandard conditions and for starvation wages.” H.R. Rep. No. 99-682(I) at 47, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5662 (“Rep. No. 99-682(I)”), cited in A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408, 414 n.32 (1995), aff'd sub nom. NLRB v. A.PR.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997). Further, undocumented immigrants commonly will decline to report private or official abuse and are frequently unwill:ng to pursue civil claims in court. Linda Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 Wis. L. Rev. 955, 986 (1998). The lack of availability of safety-net programs such as unemployment insurance, food stamps and welfare supplies further reason for undocumented workers to suffer workplace illegality without risking job separation. Jd. at 993-94. 12 In Dallas, the Regional Administrator of the Wage and Hour Division of the U.S. Department of Labor indicates that illegal immigrant workers endure sexual harassment, denial of overtime pay and wages below the minimum federal standard because they are worried they will be deported. L.M. Sixel, Aggressive Stance Urged for EEOC/Witnesses Describe Abuse of Immigrants, Houston Chron., June 23, 1999, available at 1999 WL 3997076. Thus, employers who hire undocumented workers gain a significant initial advantage of a workforce that is willing to work hard, under poor conditions and for poor wages. The workforce will, as well, suffer illegal conditions that lawfully present workers would contest. Additionally, immigrant workers have good reason to fear retaliation by their employers. 2. Retaliatory threats of INS raids are common when workers seek to enforce rights under the NLRA. Many employers hire immigrant workers with a generalized knowledge that some in the workforce may be undocumented. Others have very specific knowledge that particular workers are undocumented. Still others seek out undocumented workers for the very purpose of taking advantage of them. Whatever the initial degree of an employer’s interest in a worker's immigration status, that interest rises sharply when workers begin to organize a union. In such cases, instances of retaliatory threats or actual reports to the INS are common. As shown below, the temptation to engage in this form of retaliation is overwhelming, given that it has no cost ‘9 the employer. The NLRA expresses our national policy that all workers be free to exercise their right to organize and bargain collectively through representatives they choose, without interference or retaliation by their employers. 29 U.S.C. § 151 (1994). The law who exercise these protected rights. Employers may not directly 13 retaliate by threatening to fire or firing workers. Nor may they use the INS to retaliate indirectly. Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984). The protections of the law extend to all employees, regardless of their immigration status at the time the work was performed. Jd. at 895. In spite of the protections in labor and immigration laws, undocumented workers are extremely vulnerable to anti-union pressure from employers. An employer who is adamantly opposed to recognizing a union may discharge immigrant union supporters or threaten to turn workers over to the INS if they seek to organize themselves into a union. Unfortunately, threats and actual retaliation against undocumented immigrants are a common occurrence for immigrant workers and their U.S. citizen co-workers. Sure-Tan itself is the best-known example of this retaliation. There, five of seven eligible voters in a successful union election were undocumented. The employer knew of the workers’ undocumented status at least several months prior to the union election. Two hours after the workers voted in favor of union representation, and cursing the workers for having voted for the union, the employer questioned them about their immigration status. He then turned the workers over to the INS. Sure-Tan, 467 U.S. at 886-87. While Sure-Tan may be the most well known example of employer retaliation, it is not a unique one. The scenario of employer retaliation and misuse of the immigration laws presented in Sure-Tan has been repeated across the country, in many industries: Victor Benavides began working as a boiler mechanic in 1990. Before he was hired, the president of the corporation personally interviewed Mr. Benavides. Mr. Benavides told the president that he was working unlawfully in the United States. The president responded that he needed only a “legal” name so that Benavides could be listed on the company’s books. Several 14 months later, when Benavides and another undocumented worker, Alberto Guzman, became active in a union organizing drive, and in an atmosphere of “flagrant and pervasive unfair labor practices,” the workers were fired. One day after the union won the election, the employer asked the INS to investigate the legal status of its employees. The Board found in favor of the employees and made a limited back pay award to Benavides and Guzman. A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N.L.R.B. 408, 409, 415 (1995), aff'd sub nom. NLRB v. A.P-R.A. Fuel Oil Buyers Group, Inc., 134 F.3d 50 (2d Cir. 1997). Rodrigo Romero is a native of Belize. He worked in the warehouse of a Los Angeles department store for seven years. His employer knew of his undocumented status, and had, in fact, referred him to an immigration lawyer to gain legal residency. During an organizing campaign, he was pressured to vote against the union and reminded of his tenuous status. Romero voted in favor of union representation at the plant. The next day, he was fired, ostensibly because of his undocumented status. Nancy Cleeland, Unionizing is Catch 22 for Illegal Immigrants’ Jobs: Undocumented Status Makes Them Vulnerable to Workplace Retaliation, L.A. Times, Jan. 16, 2000, available at 2000 WL 2201447. In 1999, workers at a Holiday Inn Express hotel in Minneapolis voted to join the Hotel Employees and Restaurant Employees union. A call to the INS by the employer resulted in the arrest of eight members of the union’s negotiating committee. T. Alexander Aleinikoff, I/legal Employers, Am. Prospect, Dec. 4, 2000. In 1996, the Teamsters’ and United Farm Workers’ unions began a joint organizing drive in Washington State’s lucrative apple industry, beginning with a packing company in Wenatchee, Washington. One employee, Mary Mendez, quotes the employer’s anti-union consultant as having told the workers: “there hasn’t been a union here yet, and the INS hasn’t done any raids. But with a union, the INS is going to be around.” The ——— 15 union lost the subsequent election, but the NLRB issued a bargaining order because of the company’s many illegal actions. Devid Bacon, Immigration Law — Bringing Back Sweatshop Conditions, Nov. 10, 1998, available at (documenting similar employer abuses in a maintenance company in the Silicon Valley of California, a knitting company on Long Island, and a video company in San Leandro, California). In 1994, workers in a Chicago Italian restaurant sought to join a union. At an employee meeting, the general manager told the workers that the INS could visit the restaurant. 6 West Ltd. Corp. v. NLRB, 237 F.3d 767, 772 n.7 (7th Cir. 2001). Aida Naranjo was hired in 1985 to work for a Brooklyn textile manufacturer. In 1991, after voting for union representation from the International Ladies Garment Workers Union, she was laid off. The Board found that the rights of Ms. Naranjo and other workers were violated when the employer made implicit threats, shortly after the union election, to report all of them to the INS in retaliation for their support of the union. Impressive Textiles, 317 N.L.R.B. 8 (1995). In Impact Industries, Inc., 285 N.L.R.B. 5 (1987), remanded, 293 N.L.R.B. 794 (1989), an Illinois aluminum and zinc die casting manufacturer contacted the INS after being informed that 99% of the Mexican immigrants in his employ the union. He secured interviews of each employee by the INS, spreading fear among the workers. In its finding of a pervasive anti-union climate, the Board said that the employer “viewed the INS program as a handy convenient way to nd itself of a bloc of union-supporting employees.” Jd. at 37. udio Quijada worked as a janitor for a building scsintmance compeny in White Paian, Now Yor He contacted the Service Employees International Union in October 1989 to organize the workforce. About a week later, when he went to pick up his check, a company manager told him that if he did not withdraw his support for the union, he would be reported to 16 the Immigration Service. The employer threatened to report another employee to INS because her brother refused to give false testimony at the employer’s behest. The Board found in favor of the employees. Accent Maintenance Corp., 303 N.L.R.B. 294, 296 (1991). Emme Loy was involved in an organizing drive at a bakery in Brooklyn in 1988. His employer threatened to close the bakery and tear up any union cards given to him. Further, he informed the workers that the union was “not for illegals.” Breakfast Productions, Inc., 293 N.L.R.B. 607, 609 (1989). Similar examples abound, both before and after the passage of IRCA. In 1977, Hilda Niz worked at a California tire company. She complained to the company general manager that her son, who also worked there, had not received overtime pay due him. In response, the manager said that if Ms. Niz complained to the Department of Labor, he would have her killed. When Ms. Niz complained, along wich six other employees, six workers were laid off. Later, the employer claimed that since some of the workers were undocumented, it was not liable for back pay. NLRB v. Apollo Tire Co., 604 F.2d 1180, 1181-82 (9th Cir. 1979). In Chicago in 1982, immigrant workers at a tortilla factory began an organizing drive. Among many other retaliatory acts, the employer instituted a policy that workers would not be allowed to collect their paychecks unless two forms of identification, such as a birth certificate, social security card or immigration document, were shown. In the course of interrogating an employee about her union sympathies, a manager showed the employee a newspaper article about INS arrests of workers during a union organizing drive, and stated that the employer, too, could call INS. The Board found the employer threats to report workers to the INS to be unlawful retaliation and issued a bargaining order on the basis of the numerous acts of retaliation. De/ Rey Tortilleria, Inc., 272 N.L.R.B. 1106, 1112 (1984), order enforced by N.L.R.B. v. Del Rey Tortilleria, 823 F.2d 1125 (7th Cir. 1987). ' 17 In 1975, employees at a shipbuilding plant on Long Island decided to join a union. The shipbuilder threatened to have one of the workers, Juan Figueroa, a native of Guatemala, deported if he testified against the employer at an NLRB hearing. NLRB v. John Dory Boat Works, Inc., 229 N.L.R.B. 844, 852 (1977). See also Corrugated Partitions West, Inc., 275 N.L.R.B. 894, 897 (1985) (California manufacturer repeatedly threatened to call INS on workers who supported the union); Sun Country Citrus, Inc., 268 N.L.R.B. 700, 708 (1984) (Arizona employer violated Section 8(a)(1) of the NLRA by telling workers that immigration papers would be required to vote in union election); Caffe Giovanni, Inc., 259 N.L.R.B. 233, 235, 237 (1981) (restaurant made at least two specific threats to induce action by the INS against workers engaged in union activities); Futuramik Industries, Inc., 279 N.L.R.B. 185, 185 n.3 (1986) (employer threatened at least 10-20 workers either on election day or shortly before with INS enforcement if they voted for union representation); Hasa Chemical, Inc., 235 N.L.R.B. 903, 905 (1978) (employer’s president said that ifhe lost the election hearing he was going to call the INS and have all the “illegal aliens” hauled off); Viracon, Inc., 256 N.L.R.B. 245, 246 (1981) (where an Illinois employer threatened to report undocumented workers to INS if union won election, the Board said: “Like the fears of job loss discussed above, fears of possible trouble with the Immigration Service or even of deportation must remain indelibly etched in the minds of any who would be affected by such actions on Respondent’s part.”’). Just in the last several months, the NLRB has ruled in two cases involving employer misuse of its knowledge of workers’ unlawful status. In October 2001, a California waste company was found to have committed an unfair labor practice by contacting the INS a few days after a union representation election and telling eleven union supporters they could not The Board held that the employer’s immigration status inquiry 18 was a “smokescreen” for unlawful discharges. Nortech Waste, 336 N.L.R.B. 79 (2001). In August 2001, the Board overruled a Chicago employer’s objections to a unjon election. The employer told the Board that some of the workers who voted in the election were undocumented. It offered as proof letters from the Social Security Administration indicating that some of the workers had invalid social security numbers. However, the Board pointed out that the employer had received letters from the Social Security Administration as far back as May 1999, and had not raised any questions about immigration status until after the union election in February 2001. Superior Truss & Panel, Inc., 334 N.L.R.B. 115 (2001). The above examples mainly involve written decisions by courts and by the NLRB. Many more complaints are made yearly that do not result in Board findings. Officials of the NLRB estimate that as many as forty-five complaints are filed yearly involving threats of deportation in the city of New York alone. Thomas Maier, Workers Often Subject to Scare Tactics, Newsday, Jul. 26, 2001. The secretary-treasurer of the Hotel Employees and Restaurant Employees’ union, involved in the Holiday Inn Express case outlined above, says that immigration status “has come up in every single organizing campaign we’ve had in the last three years. In a number of our hotels, we have lost entire departments. And it really has a chilling effect on an organizing drive. People understand very clearly that if you are involved in trying to bring in a union, you put your job in jeopardy.” Cleeland, supra. 19 3. Employer retaliation is also common when workers seek to enforce wage and hour, discrimination, health and safety, and other employment rights. As noted above, employers use threats of INS raids as tools to maintain a non-unionized labor force. In addition, workers who seek to be paid minimum wage or overtime pay, have healthful work environments, or to be protected against sex discrimination or sexual harassment at work are also vulnerable to this form of abuse. The Court’s back pay decision in the present case may affect employer retaliation and worker remedies under a host of other labor and empluyment laws. Silvia Contreras worked as a secretary for a company that sells commercial insurance to truck drivers. In 1997, after Ms. Contreras filed a claim for unpaid wages and overtime under the FLSA, her employer turned her in to the INS. A court later awarded her back pay under FLSA. Contreras v. Corinthian Vigor Ins. Brokerage Inc., 25 F. Supp. 2d 1053 (N.D. Cal. 1998). In United States v. Alzanki, 54 F.3d 994, 999 (1st Cir. 1995), cert. denied, 516 U.S. 1111 (1996), an employer confined her immigrant employee to the apartment, forced her to work fifteen hour days, exposed her to noxious cleaning chemicals, and refused to provide medical treatment when the chemicals caused her illness. The employer threatened her with deportation almost daily. He was later convicted of holding her in involuntary servitude. In Urrea v. New England Tea & Coffee Co., 2000 WL 1483215 (Mass. Super. 2000) an employer knew of a female employee’s undocumented status and did nothing to contest it until she filed a complaint alleging sex harassment. The employer then aggressively attempted to uncover her immigration status during discovery in order to stop the prosecution of her case. In Gilbert, Arizona, female employees at Quality Art LLC, a picture frame manufacturing company, accused their employer 20 of offensive and intrusive searches, as well as other harassment on the basis of sex, such as being assigned to sex-segregated positions. The employer retaliated by terminating some employees, forced some workers to quit their jobs based on the hostile work environment, and reported the women to the INS. Although INS officials said that they sympathized with the women — calling them “courageous” for coming forward — INS indicated that the women likely would be returned to their countries. Yochi J. Dreazen & Rudy Kleysteuber, A/legations of Sexual Harassment in Arizona Put Immigration Service and EEOC at Odds, Wall St. J., Aug. 22, 2000, available at 2000 WL-WSJ 3040954. Foreign garment workers from China sued their employers in Saipan under the FLSA using fictitious names because the recruiters and employers had threatened them with physical assault and other extreme forms of retaliation. The workers were required to surrender their passports upon hire, and were told by their employers that their families in China would be arrested, physically assaulted, and/or fined if the workers complained of unfair working conditions in the garment plants in Saipan. Does I through XXIII v. Advanced Textile, 214 F.3d 1058, 1065 (9th Cir. 2000). Seven employees at a Staten Island iaundry plant filed a complaint with the New York State Labor Department, charging that their employer owed them $159,000 in back wages. Five days later, the INS raided the workplace, under circumstances indicating that the employer had reported the workers. Matthew Strozier, Immigrant Groups Call for End to Workplace Raids, India Abroad, Oct. 23, 1998, available at 1998 WL 11376904. Rajni Patel worked as a janitor and maintenance person for a Quality Inn in Birmingham, Alabama. When he brought suit against his employer for unpaid minimum wages and overtime, the employer claimed that it was not obligated to pay unpaid minimum wages or liquidated damages to undocumented workers. Patel v. Quality Inn South, 846 F.2d 700 (11th Cir. 21 1988). The employer had known of Patel’s undocumented status all along: in the lower court, the employer claimed that it brought Patel to the motel in order to “hide” him from the INS. See Patel v. Quality Inn South, 660 F. Supp. 1528 (N.D. Ala. 1987). An undocumented farmworker on a California ranch worked for three years for less than the minimum wage. He joined with thirteen other workers in a lawsuit to recover wages owed them. The employer reported all of the plaintiffs to the INS. Fuentes v. INS, 765 F.2d 886, 887 (9th Cir. 1985), vacated as moot, 844 F.2d 699, 700 (9th Cir. 1988). Most recently in New York City, retail grocery and pharmacy chains hired labor contractors who recruited and hired delivery workers from among an almost exclusively undocumented West African community. After working 80 hour weeks for as little as $2 an hour, the workers filed a claim under the FLSA. The labor contractors knew the workers were undocumented and had not demanded proof of work authorization at the time of hire. However, later they began gathering copies of worker passports and visas in order to intimidate and harass complaining workers. A federal district court judge granted the delivery workers a protective order and a temporary restraining order prohibiting the employers from retaliating against them by turning them in to the INS. Ansoumana v. Gristede s, No. 00- 0253 (S.D.N.Y. filed Jan. 13, 2000) ,. By contrast, the number of warnings to employers nationwide was 383, down 40% from 1998. The INS issued only 417 notices of intent to fine employers, na*ionwide, in 1999, a decrease of 59%. Id. at 5. Between 1989 and 1993, the average employer fine under the employer sanctions provisions was only 24 $292. Louis Freedberg, INS to Crack Down on Employers, S.F. Chron., Feb. 18, 1994, at 2. Because of the provisions of the law and the focus of INS enforcement efforts, employers have little to fear from sanctions. The risk of sanctions being levied is, in fact, so low that sanctions amount to a cost of doing business, a “reasonable expense, more than offset by savings of employing undocumented immigrants in the first place or by the perceived benefits of union avoidance.” A.P.R.A. Fuel Oil Buyers Group, 320 N.L.R.B. at 415. Workers, on the other hand, have much to fear from employers. Employer retaliation against workers has reached a degree such that even the INS recently admitted that the only workers at risk of deportation for unauthorized employment are those reported by the employer in retaliation for protected organizing activities or “that kind of stuff.” Lori A. Nessel, Undocumented Immigrants in the Workplace: the Fallacy of Labor Protection and the Need for Reform, 36 Harv. C.R.-C.L. L. Rev. 345, 359-362 (2001). 2. In a scheme without back pay, retaliation imposes no cost on employers. Employers gain significant economic advantages by hiring undocumented workers. They have little to fear in the way of workers. Employers who choose to retaliate against workers who exercise their labor rights would also find, in the absence of a back pay remedy, that this is a “no-cost” strategy. Back pay performs two functions in the NLRB administrative scheme: it is intended to remedy the consequences of an unfair labor practice, and to deter further violations. Consolidated Edison v. NLRB, 305 U.S. 197 (1938). Back pay compensates victims of unfair practices by making them whole for the losses suffered on account of the unfair labor practice. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1940). 25 Moreover, it deprives employers of the competitive advantage they secure by acting unlawfully. Absent back pay awards to oe ted dover of discrimination, an employer who would not have a union at its workplace, or who wishes to retaliate against a worker making a minimum wage or sexual harassment claim, has a incentive to retaliate. Employers know that they are in little danger of sanction for lack of compliance with the law. On the other hand, a “tip” to the INS or threat to a workforce will rid the employer of the union. Finally, in jurisdictions where no back pay is awarded to undocumented immigrants, there 1s no cost to an employer who would violate the law. In such a case, threats to turn immigrant workers in to the INS perversely become a “reasonable” business decision. For workers, the absence of back pay means the undocumented worker is put in a position worse than he would have held had he never made a complaint. That is, he is without a job, and without compensation for a job illegally taken from him. It is little wonder, therefore, that workers do not complain about illegal acts. 3. If left unremedied, employer retaliation against undocumented workers chills all workers’ rights. As this Court has previously recognized: “[A]cceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.” DeCanas v. Bica, 424 US. 351, 356-57 (1976). The impact of employers’ unlawful conduct is felt not only by undocumented workers themselves, but by their co-workers as well. Documented workers and U.S. citizens may be reluctant to organize their workplaces because threats to turn workers over to the INS, properly timed, can undermine the election 26 process. Deportation of their undocumented co-workers will dilute the power of their bargaining unit, if it survives a union election. Further, employers’ violations of the NLRA, and other laws, may never come to light because of undocumented workers’ fears of exposure. Such a result does damage to the retaliation protections in the laws and the entire remedial scheme. As this Court has said in another context, employee complaints “may disclose patterns of noncompliance resulting from a misappreciation of the Act’s operation or entrenched resistance to its commands, either of which can be of industry-wide significance. The efficacy of its enforcement mechanisms becomes one measure of the success of the Act.” McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 359 (1995). Complete freedom to make complaints without fear of retaliation is necessary “to prevent the Board’s channels of information from being dried up by employer intimidation of prospective complainants and witnesses.” John Hancock Mut. Life Ins. Co. v. NLRB, 191 F.2d 483, 485 (D.C. Cir. 1951). The inability of undocumented workers to make complaints and secure effective remedies takes on added significance in a system that relies on complaints. The NLRB has no authority to conduct investigations on its own. “[I]mplementation is dependent ‘upon the initiative of individual persons.’ ” Nash v. Florida Indus. Comm'n, 389 U.S. 235, 238 (1967). Thus, when workers, fearing retaliation, fail to make complaints, unscrupulous employers profit. Both documented and undocumented workers suffer. In addition, the efficacy of the NLRA is undermined. 27 CONCLUSION Congress passed the employer sanctions provisions of the Immigration Reform and Control Act as part of its strategy to “remove the economic incentive which draws [undocumented] aliens to the United States as well as the incentive for employers to exploit this source of labor.” H.R. Rep. No. 99-682(I), reprinted in 1986 U.S.C.C.A.N. 5649, 5656. Thus, Congress intended that enforcement of NLRA provisions would support the IRCA’s purpose of reducing illegal immigration by focusing on the employer’s unlawful actions. Back pay remedies, to the extent they “depriv[e] employers of any competitive advantage they may have secured by acting unlawfully,” complement the purpose of the IRCA to protect U.S. labor markets from the effects of illegal immigration. NLRB v. A.P.R.A. Buyers Group, Inc., 134 F.3d at 55. One observer has posed the question before the Court as one of incentives. Which of the two is more likely to take advantage of the system: Employers, in a system where undocumented workers who suffer illegal discrimination can receive no remedy? Or employees, in a system where undocumented workers may collect back pay for a reasonable time following anti-union discrimination? John L. Mcintyre, What Does “Lawfully Entitled to be Present and Employed Mean to You?: Undocumented Workers & Make-Whole Remedies under the NLRA, 22 U. Haw. L. Rev. 737, 762 (2000). That question is answered by the dissent of Judge Cudahy in Del Rey Tortilleria v. N.L.R.B., the only circuit court decision denying compensatory damages to undocumented employees suffering violations of their labor rights by their employees: Illegal aliens do not come to this country to gain the protection of our labor laws. They come here for jobs. They can find jobs because they are often willing to work hard in rotten conditions for little money . .. When we deny back pay to illegal aliens, we tell employers to hire more of them; for aliens 28 who cannot claim monetary damages for unfair labor practices are less expensive to hire and less trouble than their native counterparts. Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1125 (7th Cir. 1992) (Cudahy, J., dissenting). The Board’s remedy of limited back pay to undocumented victims of discrimination is the only countervailing force weighing against the incentive and economic advantage outlined in this brief. If the complementary policies of the NLRA and IRCA are to be given effect, this Court must endorse this remedy so that employers will know that the practice of threatening their workers with deportation has monetary consequences. Limited back pay such as that afforded Mr. Castro in this case also inform undocumented workers that U.S. labor laws protect them, not only on paper, but in reality. Amici respectfully urge the Court to affirm the decision of the District of Columbia Circuit in this case. Respectfully submitted, JAMES REIF Counsel of Record GLADSTEIN, Reir & MEGINNISS 817 Broadway, Sixth Floor New York, NY 10003 (212) 228-9160 JAMES WILLIAMS CATHERINE K. RUCKELSHAUS NATIONAL EMPLOYMENT Law Proyect, Inc. 55 John Street, Seventh Floor New York, NY 10038 (212) 285-3025 =-_ —_— - —-— 29 REBECCA SMITH NATIONAL EMPLOYMENT Law Prosect, INc. 407 Adams Street, SE, Suite 203 Olympia, WA 98501 (360) 534-9160 Leticia SAUCEDO JosEPH BERRA MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 140 East Houston Street San Antonio, TX 78205 (210) 224-5476 Attorneys for Amici Curiae --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0462%3A13. Public record. Not legal advice.