Wronged Without Recourse

In August the National Labor Relations Board (NLRB) made two decisions that will likely affect the lives of immigrant workers and their families in considerable—and potentially contradictory—ways for years to come. The first stipulates that private-sector employers inform their workers of their rights under the National Labor Relations Act (NLRA) by posting notices similar to the ones they are already required to post for other workplace laws and regulations. This decision is at least partially motivated by “the increasing proportion of immigrants in the work force” and the fact that they “are unlikely to be familiar with their workplace rights.” The second reflects the influence of the Hoffman Plastics case (2002), in which the Supreme Court ruled that undocumented immigrants who are dismissed for pursuing their rights under the NLRA are ineligible for the standard remedies of back pay—that is, the wages they would have received had they not been dismissed—and reinstatement. While a majority of board members found the arguments for granting back pay to undocumented workers “compelling,” they nonetheless resolved a case that originated in 2003 by noting that the broad language of the Hoffman precedent “forecloses backpay awards for undocumented workers regardless of the circumstances of their hire.”

The two decisions are, at least in some sense, at odds with each other. While the notice requirement is designed to inform workers of their right to pursue “concerted activities” protected under Section 7 of the NLRA whether they are unionized or not, the Hoffman precedent creates a subclass of workers who are ineligible for the standard legal remedies when those rights have been violated. “As a result,” explained NLRB members Wilma Liebman and Mark Gaston Pearce in their ambivalent concurring opinion, “the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the work force is fragmented, and a vital check on workplace abuses is removed.”

The contradictions are laid bare by the recent experiences of Somos un Pueblo Unido, an immigrant resource center in Santa Fe, New Mexico that has achieved a good deal of success by using the NLRA to defend unorganized immigrant workers engaged in protected and concerted activities. When housekeepers at the Santa Fe Hilton complained about their working conditions in 2008, for example, they were dismissed by hotel management. But Somos helped the aggrieved workers file a complaint with the NLRB, and the case was eventually settled out of court when the Hilton agreed not only to offer the plaintiffs back wages but also to post bilingual signs notifying workers of their NLRA rights. Somos has also shown that out-of-court settlements are not a necessary means of redress. Immigrants who worked for the contractor who provided janitorial services to the Santa Fe Public School System turned to Somos in 2010, when their own complaints about sexual harassment and the non-payment of wages were met by threats of immediate dismissal. The NLRB responded by ordering the company to reinstate the workers, pay their back wages, and post a notice of their NLRA rights.

The Somos experience is not unique. While the NLRB makes no systematic effort to track complaints that come from non-unionized workers, such complaints are apparently proliferating at a rapid rate, fueled in part by immigrant- and worker-advocacy groups that operate much like their counterpart in Santa Fe. Fortified by the NLRB’s notice requirement, such groups could eventually breathe new life into old labor laws. “Any group of workers can act as a union if they band together,” says Peter Zschiesche of the Employee Rights Center, and their efforts to do so are protected by the NLRA regardless of their immigration or collective bargaining status. Workers therefore have the right to demand respect for labor and employment law, remedies for past abuses, and protection from retaliation or reprisal on the part of their employers. By exercising their rights in new and creative ways, they can at least potentially avoid the perils and pitfalls of an outdated New Deal industrial relations regime that presupposes majority (or contract) unionism.

The timeliness of the NLRB’s notification ruling further magnifies its potentially positive impact. The requirement was issued in the midst of a monumental economic crisis, and previous crises of this magnitude have ushered in fundamental shifts in industrial relations. For example, the Panic of 1873 animated the growth of the craft unions that came to be affiliated with the American Federation of Labor, and the Great Depression opened the door to the industrial unions that would form the backbone of the Congress of Industrial Organization. Today’s Great Recession may well mark a third historical turning point in American industrial relations.

After all, the traditional system of collective bargaining is broken, perhaps beyond repair. The continuous decline in union density—now in the single digits among private sector workers—is but the most obvious symptom of the mismatch between the New Deal industrial relations regime and today’s employment structure. While the former all but presupposed large, concentrated masses or largely undifferentiated labor, and thus came to be identified with blue collar bastions like Detroit, Pittsburgh, and Chicago, the latter prioritizes flexibility, decentralization, and diversity, and thus finds expression—at least metaphorically—in Silicon Valley and the South. Workers today are not only heterogeneous in terms of skill, sex, and social origin but also are dispersed across smaller, less stable firms that are less and less likely to provide long-term employment.

They are also in large measure ignorant of their rights at work. A recent study by Annette Bernhardt of the National Employment Law Project (NELP) and collaborators at three different universities found that more than a quarter of all low wage workers—most of whom are immigrants and few of whom are organized—are paid less than the legally mandated minimum wage and that less than a quarter of those who work more than a 40 hour week are paid the legally mandated overtime rate. “Many of these workers have no idea that they are protected by the NLRA and have the right to organize or engage in other concerted activity to protest these illegal working conditions,” NELP explains. “The Board’s proposed notice is an important first step for employees in these violation-heavy jobs.”

However, the NLRB’s simultaneous recognition of the Hoffman Plastics precedent constitutes a no less important step backward. After all, the back-pay remedy not only makes victims of abuse whole but it also serves to deter future violations. The Hoffman precedent, therefore, is likely to result in retaliation by employers, capitulation by workers, and the perpetuation—or perhaps even intensification—of abuse and exploitation in the low-wage labor market.

The AFL-CIO and the National Immigration Law Center are appealing the NLRB decision on the grounds that “the Supreme Court did not consider the Board’s precedent concerning the availability of back pay for NLRA violations when an employer knowingly enters into an unlawful employment relationship.” Others point to the inconsistency between the treatment of undocumented immigrants, who are not allowed to receive back wages they were ineligible to earn in the first place, and underage workers, who face no similar restriction.

The NLRB has clarified its decision by insisting that, although the Hoffman precedent eliminates back pay and reinstatement, it does nothing to restrict the use of other “significant sanctions,” including cease-and-desist orders, notice postings, and in extreme cases, perhaps, efforts to make employees or employee rosters available to unions and their representatives for organizing purposes. The NLRB has also indicated a willingness to help victims of unfair labor practices defer immigration action pending the resolution of their cases or pursue visa remedies that would once again make them eligible for back pay and reinstatement.

Hoffman could nonetheless undermine the potentially transformative impact of the notification requirement. Neither the appeal sponsored by the AFL-CIO nor the alternatives to back pay and reinstatement are particularly promising options. Moreover, the combination of a notice requirement and the Hoffman precedent sets the stage for a vicious circle of mobilization by documented workers and demobilization among undocumented workers that gives employers an incentive to replace the former with the latter—with predictably pernicious consequences for social stratification and cohesion.

A more enlightened judiciary would recognize these tensions and their potentially catastrophic consequences for U.S. citizens as well as aliens. But judicial enlightenment derives less from legal training and precedent than from social struggle and experience. The conflicts playing out in the low-wage labor market today will prove crucial as we construct the labor-market institutions of the future.