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DOL Vows to Ignore Supreme Court Decision and Continue Seeking Back Pay Denied to Undocumented Workers

Despite the Supreme Court’s decision in Hoffman Plastic Compounds v. NLRB, 122 S.Ct. 1275 (2002), holding the National Labor Relations Board (“NLRB”) may not award back pay to an undocumented worker even if the employer improperly fires the employee for union activity, the Department of Labor (“DOL”) announced it will continue to seek back pay claims for undocumented employees.

In a policy statement, the DOL stated the Hoffman analysis, applying the National Labor Relations Act (“NLRA”), is not binding on the application of other United States labor laws such as the Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act (“MSAWPA”). This argument is premised on the fact that the Supreme Court interpreted only one law in Hoffman, the NLRA. Thus, the argument continues, the Supreme Court’s decision does not effect the FLSA or the MSAWPA.

The key distinction, relied on by the DOL, between the construction of the NLRA in Hoffman and the provisions of the FLSA and MSAWPA is that Hoffman called for back pay for work never actually performed. That is, the NLRB sought back pay for time the employee would have worked if he had not been illegally discharged. On the other hand, under the latter two statutes, the DOL seeks back pay for hours an employee has actually worked. Interestingly, this approach has already been adopted in an action under the FLSA in a U.S. District Court in New York. See Liu v. Donna Karan Int’l Inc., 207 F.Supp.2d 191 (S.D.N.Y. 2002).

The DOL is currently considering the effect of Hoffman on other labor laws it enforces.

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