Peter E. Shapiro · July 2010
78 GEO. WASH. L. REV. 1069 (2010)
In Hoffman Plastic Compounds, Inc. v. NLRB, the Supreme Court held that the National Labor Relations Board (“NLRB”) could not award backpay to unauthorized workers who were fired because of their union activity. At its core, Hoffman stands for a well-understood central proposition: in the twenty-first century, when labor law challenges immigration law in the courts, labor law loses. But Hoffman also stands for a rarely understood lesson: a clash between labor and immigration law is not worth the effort for either side. Hoffman is the straitjacket of labor law, the result of a perceived tension between labor and immigration law that restricts labor law the more labor law pulls on it. This tension is not only unnecessary, it is also self-destructive to both labor and immigration law goals. Only by giving up this tension and reconciling with immigration law can labor law free itself from the effects of Hoffman and effectively organize the changing workforce of the new millennium.
This Essay suggests that when backpay for unauthorized workers is precluded under Hoffman, the NLRB should be empowered to levy a fine for the same amount from employers. This money should then be used to fund groups that organize immigrant workers. This proposal is an attempt to ameliorate the tension between labor and immigration law while giving proper respect to the objectives of each.
Part I introduces the Hoffman decision and dissent, and uses them to illustrate that not only does a clash between labor and immigration law result in labor law losing, but also that the clash is self-destructive to the goals of both. Part II discusses and critique proposals to award the backpay precluded by Hoffman to alternative recipients, such as government institutions or immigration enforcement agencies. Part III argues that this backpay should be used to fund groups that organize immigrant workers and discusses why only this proposal properly resolves the tension between labor and immigration law.
