Drawing the Line after Hoffman Plastic Compounds, Inc. V. Nlrb: Strategies for Protecting Undocumented Workers in the Title Vii Context and Beyond

59 Pages Posted: 21 Jun 2005

See all articles by Christopher Ho

Christopher Ho

Legal Aid Society - Employment Law Center

Jennifer C. Chang

ACLU Immigrants' Rights Project

Abstract

This article examines two ways in which the Supreme Court's 2002 opinion in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board should be construed narrowly. First, Hoffman's analysis - grounded in the specific purposes of the NLRA and the limited competence of the NLRB to referee apparent conflicts with other laws - cannot be fungibly imported into other statutory schemes. Second, Hoffman does not give license to defense counsel to utilize intrusive and threatening discovery tactics as a means of coercing withdrawals of claims or dismissals of plaintiffs, inasmuch as it does not address how, or even whether, discovery into status can legitimately be obtained in the first place. The authors examine the potential impact of the Hoffman rationale upon the ability of immigrant workers, documented and undocumented alike, to pursue redress for the unlawful actions of their employers. Using actions brought under Title VII as an example, the article demonstrates that the flawed Hoffman analysis cannot, in any event, be generically extended to other statutes. The authors conclude that for a variety of reasons, Hoffman does not confer carte blanche upon employer defendants to launch invasive and intimidating inquiries into the immigration status of employees who assert their legal rights.

Keywords: immigration,litigation,status,immigrant,undocumented,worker,discrimination,Hoffman,discovery,retaliation,employer,employee,Title VII,labor,NLRA,workplace,illegal,INS,Congress,policy,deportation,courts,federal,chilling,rights

JEL Classification: F72,J15,J70,J71,J78,J79,K31,K39,K41

Suggested Citation

Ho, Christopher and Chang, Jennifer C., Drawing the Line after Hoffman Plastic Compounds, Inc. V. Nlrb: Strategies for Protecting Undocumented Workers in the Title Vii Context and Beyond. Hofstra Labor & Employment Law Journal, Vol. 22, p. 473, 2005. Available at SSRN: https://ssrn.com/abstract=745604

Christopher Ho (Contact Author)

Legal Aid Society - Employment Law Center ( email )

180 Montgomery Street, Suite 600
San Francisco, CA 94104-4244
United States
415.864.8848 (Phone)
415.593.0096 (Fax)

Jennifer C. Chang

ACLU Immigrants' Rights Project ( email )

No Address Available

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