State opposed
high court decision

Ruling restricts illegal workers'
rights in employment cases

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Star-Bulletin staff and wire

WASHINGTON >> Immigrants who work illegally in American plants, restaurants and fields do not have the same rights to restitution as U.S. citizens who are mistreated on the job, a divided Supreme Court ruled yesterday.

The court ruled that a plastics company owed nothing to a Mexican man who used a friend's identification to get a job. The Bush administration argued that without the threat of punishment for employers, some of the millions of undocumented workers in the United State might be exploited.

Hawaii was among a number of states that supported the government's argument.

Justices split 5-4 along ideological lines on whether companies can be forced to give back pay to illegal workers wrongly fired or demoted.

"Awarding back pay to illegal aliens runs counter to policies underlying" federal immigration laws, Chief Justice William H. Rehnquist wrote in the court's opinion.

The National Labor Relations Board has been allowing wronged undocumented workers to collect back pay since 1995. The board makes sure that employees are not punished for engaging in union activities and protesting employment conditions. The chief tool is requiring back pay, or restitution.

"This decision has ominous implications for the enforcement of labor laws across the board," said William B. Gould IV, the board's chairman from 1994-98. "It will bring into our borders more exploitable low-wage workers."

As many as 7 million undocumented workers have jobs in the United States, the court was told. Six states with high immigration populations had argued that punishments are needed to protect workers.

The Supreme Court has held that undocumented workers are protected by federal labor laws. Justices said in this case that did not entitle them to back pay "for wages that could not lawfully have been earned and for a job obtained in the first instance by a criminal fraud."

Arizona, California, Hawaii, Massachusetts, New York, West Virginia and Puerto Rico urged the Supreme Court to uphold that decision.

Hawaii labor attorney Susan Ichinose, described yesterday's U.S. Supreme Court ruling as "disappointing."

"I think that if you do a day's work it doesn't really matter if you are documented or undocumented," Ichinose said. "You should be paid for a day's work and you should have the rights of every worker in this country."

Ichinose said the decision was not unexpected, given the direction of the court in recent years. But she said she hoped Hawaii's Civil Rights Commission and the state's Department of Labor would not take the decision as its lead when enforcing state laws that pertain to employees.

Honolulu attorney Greg Sato of law firm Torkildson Katz Fonseca Jaffe Moore and George applauded the decision describing it as "positive for American workers and for foreign workers who entered the U.S. legally."

"It shows you can't use fraud to obtain work and be entitled to the spoils of your illegal contract," he said.

Both the state Attorney General's Office and the Governor's Office had no comment on yesterday's decision.

Jose Castro had a minimum wage job operating a plant blender at Hoffman Plastic Compound's plant in Paramount, Calif. He and three other employees were laid off in 1989 after they supported efforts to unionize the plant. He did not speak English, nor did half of the other plant workers, according to court records. The labor board said Hoffman owed Castro about $67,000.

Hoffman can be subject to "significant other sanctions" including a requirement that it prominently post a notice to employees about their rights, Rehnquist said in the decision.

"That's meaningless. That's simply a slap on the wrist," said Gould, who now teaches labor law at Stanford University.

Maurice Baskin, Hoffman's lawyer, said the court used common sense in determining "employers should not be required to make windfall payments to illegal aliens."

Dissenting Justice Stephen Breyer said the back pay penalty "reasonably helps to deter unlawful activity that both labor laws and immigration laws seek to prevent."

Joining Breyer were Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg.

The decision was criticized by immigrant and women rights groups.

"Even though we pay lip service to the idea that there are basic human rights, we are willing to relax those human rights for a group of folks we wish were not in the country," said Martha Davis, legal director for the NOW Legal Defense and Education Fund.

The U.S. Court of Appeals for the District of Columbia sided 5-4 with Castro, who was fired after handing out union cards to fellow employees.