Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies

Ellen Dannin, Hoffman Plastics as Labor Law-Equality at Last for Immigrant Workers?, 44 U.S.F. L. Rev. 393 (2009), available at SSRN. Anne Marie Lofaso In Marbury v. Madison, the Supreme Court early on affirmed as "indisputable" the rule "that where there is a legal right, there is also a legal remedy" and "that every right, when withheld, must have a remedy, and every injury its proper redress." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone, Commentaries *23, *109). But while black letter law so instructs, employee status under the National Labor Relations Act does not always guarantee backpay to victims of unfair labor practices-or so explains Ellen Dannin in her well-documented review of the by now infamous labor-immigration case, Hoffman Plastics Compounds, Inc. v. N.LR.B., 535 U.S. 137 (2002). Her article, which was part of the University of San Francisco's symposium issue-The Evolving Definition of the Immigrant Worker: The Intersection Between Employment, Labor, and Human Rights Law-meticulously dissects the language of the Supreme Court's opinion and the oral argument to show that Hoffman Plastics' holding-that employers are not liable in backpay for violating the labor law rights of undocumented workers-is not an anomaly. Instead, it fits neatly into an historical trend of judicial amendments to the NLRA. Continue reading "Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies"

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