Caught Somewhere in the Middle

THOMAS A. RICHARD, ESQ.

Oakland, California

The last decade has seen a vast increase in workers’ compensation cases revolving around a worker’s immigration status. In 2002 the Supreme Court of the United States decided Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137. This case involved an undocumented worker who was fired by his employer for involvement in union-organized activities. The worker brought suit, and the National Labor Relations Board (NLRB) ordered the employer to discontinue violations and ordered back pay. The U.S. Supreme Court reversed, finding that the undocumented worker was not entitled to back pay because it ran counter to the policies underlying the Immigration Reform and Control Act of 1986 (IRCA), which discouraged illegal immigration. IRCA is the overlying federal Act that places the burden on employers to verify a worker’s status and keep certain records or be subject to civil and possibly criminal penalties for knowingly hiring an undocumented worker.

After this decision, there was much confusion as to whether undocumented workers were entitled to workplace and labor law rights. In 2003 the California Legislature reacted by codifying section 1171.5 of the California Labor Code to limit the potential effects of Hoffman, supra, on state labor and civil rights laws. This section provides that immigration status is irrelevant to workers’ compensation, with one exception, and prohibits using a worker’s immigration status as a basis for denying benefits.