The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. Despite the fact that immigrants often accept jobs and working conditions that no citizens seem willing to undertake, this country has responded with hostile state initiatives and federal legislative efforts that not only fail to recognize their contributions, but also penalize many aspects of their daily existence.

When an employer, wittingly or unwittingly, hires an undocumented worker, a question arises regarding the extent to which labor and employment statutory protections extend to undocumented workers. In analyzing this question, courts are forced to address the interplay between immigration and employment statutes and their respective underlying policy rationales. Prior to 2002, courts confronting these issues developed a body of law that harmonized these two distinct areas of jurisprudence, finding, in many contexts, that undocumented workers were entitled to statutory protections in the workplace. This body of law shifted in 2002 when the United States Supreme Court decided Hoffman Plastic Compounds, Inc. v. NLRB and found that back-pay for undocumented workers under the National Labor Relations Act (NLRA) was foreclosed by federal immigration policy. Since the Hoffman decision, lower courts have struggled to define the parameters of the case, and, while the jurisprudence is still evolving, many courts have limited Hoffman's reach and found workers entitled to seek legal remedies for workplace violations under a variety of statutes.

 

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