Workplace Rights and Illegal Immigration: How Implied Repeal Analysis Cuts Through the Haze of Hoffman Plastic, its Predecessors and its Progeny

57 Pages Posted: 8 Dec 2007 Last revised: 5 Feb 2013

Nhan Vu

affiliation not provided to SSRN

Jeff Schwartz

University of Utah - S.J. Quinney College of Law

Abstract

This piece focuses on the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board. In Hoffman, the Court held that undocumented workers discharged in violation of the National Labor Relations Act could not recover back pay because the Immigration Reform and Control Act of 1986 (the IRCA) trumped the National Labor Relations Act (the NLRA). This holding threatened the rights of undocumented workers in other contexts, for if the IRCA could trump the NLRA, then potentially it could be cited as the basis for a broader scale-back of immigrant rights.

We argue that the Supreme Court reached the wrong result in Hoffman because it did not analyze the interaction of immigration and labor law at issue in the case through an implied repeal paradigm. Moreover, we contend that application of this framework in the case, and in those cases that preceded it, would have lent clarity to this body of law and laid a solid groundwork for lower court judges, who have so far been unsuccessful in grappling with Hoffman's dubious reasoning.

Keywords: Immigration Law, Labor Law, Statutory Interpretation, Hoffman Plastic, Implied Repeal

JEL Classification: J50, J61

Suggested Citation

Vu, Nhan and Schwartz, Jeff, Workplace Rights and Illegal Immigration: How Implied Repeal Analysis Cuts Through the Haze of Hoffman Plastic, its Predecessors and its Progeny. Berkeley Journal of Employment and Labor Law, Vol. 29, 2008. Available at SSRN: https://ssrn.com/abstract=1067070

Nhan Vu

affiliation not provided to SSRN ( email )

No Address Available

Jeff Schwartz (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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