61 Pages Posted: 6 Feb 2010 Last revised: 19 Feb 2010
Date Written: February 4, 2010
Hoffman Plastics, the poster child of immigration gone wrong, is popularly viewed as a case that imposed penalties unique to immigrant workers. The Supreme Court decision in Hoffman Plastics can relieve an employer that illegally fires an undocumented worker from owing back pay for violations of the National Labor Relations Act; however, the sad truth is, that rather than creating an injury unique to immigrants, Hoffman Plastics is better seen as part of the long American tradition of judicial hostility toward unions and labor law with roots in the 1930s and even earlier. The Supreme Court held that, although Hoffman Plastics violated the NLRA by firing Jose Castro in retaliation for his union activities, Hoffman Plastics owed no back pay because Castro had violated immigration laws. The judicial tradition of refusing to enforce the rights Congress created under the NLRA applies equally to immigrant and native workers. This does not mean that immigration status, law, and policy played no role in Hoffman Plastics’ outcome. Rather, we cannot fully understand Hoffman Plastics – and how to redress the situation – unless we understand the roots of Hoffman Plastics. That history includes an all-out attack on the NLRA and unions by American elites, including urging employers to disobey the law; a split union movement whose battleground included the NLRB; and a judiciary willing to “judicially amend” the NLRA to add provisions Congress had rejected.
Keywords: labor, unions, labor law, immigrants, labor history, judges, Great Depression, New Deal
JEL Classification: J5, J52, J53, J58, J61, K31, K41, K42, N32
Suggested Citation: Suggested Citation
Dannin, Ellen, Hoffman Plastics as Labor Law – Equality at Last for Immigrant Workers? (February 4, 2010). University of San Francisco Law Review, Vol. 44, 2010; Penn State Legal Studies Research Paper No. 1-2010. Available at SSRN: https://ssrn.com/abstract=1548082