Beruflich Dokumente
Kultur Dokumente
All parties have consented to this filing and this motion is unopposed. Thus, Amici
have authority to file pursuant to FED. R. APP. P. 29(a).
Respectfully Submitted,
NATIONAL IMMIGRATION LAW CENTER
/s Joshua T. Stehlik
Joshua T. Stehlik, SBN 220241
Nicholas Espritu, SBN 237665
3435 Wilshire Blvd., Suite 2850
Los Angeles, CA 90010
stehlik@nilc.org
espiritu@nilc.org
Telephone: 213.639.3900
Facsimile: 213.639.3911
Counsel for Amicus Curiae
/s Joshua T. Stehlik
Joshua T. Stehlik
TABLE OF CONTENTS
State Laws Are Preempted When they Conflict with the Federal
Governments Ability to Achieve a Balance of Statutory Objectives ...........3
II.
B.
C.
ii
TABLE OF AUTHORITIES
Cases
AM Property Holding Corp.,
352 NLRB 279 (2008) .........................................................................................19
Arizona v. United States,
132 S. Ct. 2492 (2012) ................................................................................. passim
Arizona v. Valle Del Sol Inc.,
134 S. Ct. 1876 (2014) ................................................................................... 13,14
Bailey v. Gulf Coast Transp., Inc.,
280 F.3d 1333 (11th Cir. 2002) ...........................................................................18
Buckman Co. v. Plaintiffs Legal Comm.,
531 U.S. 341 (2001) ..................................................................................... passim
Centeno-Bernuy v. Perry,
302 F. Supp. 2d 128 (W.D.N.Y. 2003) ................................................................18
Contreras v. Corinthian Vigor Ins. Brokerage, Inc.,
103 F. Supp. 2d 1180 (N.D. Cal. 2000) ........................................................ 18, 19
Crosby v. Natl Foreign Trade Council,
530 U.S. 363 (2000) ...............................................................................................5
CSX Transp. v. Easterwood,
507 U.S. 658 (1993) ...........................................................................................3, 4
Equal Emp. Opportunity Commn v. Locals 14 and 15, Intl Union of Operating
Engrs,
438 F. Supp. 876 (S.D.N.Y. 1977) ............................................................... 18, 19
Farmer Bros. Coffee v. Workers Comp. Appeals Bd.,
35 Cal. Rptr. 3d 23 (Cal. App. 2005).....................................................................9
iii
iv
vi
vii
Maricopa County Sheriffs Office, News Release: Sheriff Now Investigating Uncle
Sam (July 17, 2013) .............................................................................................25
Memorandum from John Morton, Director, U.S. Immigration and Customs
Enforcement, Prosecutorial Discretion: Certain Victims, Witnesses, and
Plaintiffs (June 17, 2011) ............................................................................. passim
Revised Memorandum of Understanding between the Departments of Homeland
Security and Labor Concerning Enforcement Activities at Worksites (Dec. 7,
2011) ............................................................................................................ passim
Phil Benson, MCSO: 21 workers with fake IDs busted at Maryvale grocery, World
Now (Jan. 17, 2013) .............................................................................................25
U.S. Dept of Labor, Fact Sheet: Establishment of Interagency Working Group for
the Consistent Enforcement of Federal Labor, Employment and Immigration
Laws, ....................................................................................................................23
U.S. Dept of Labor, Interagency Working Group for the Consistent Enforcement
of Federal Labor, Employment and Immigration Laws Action Plan (May 8,
2015), ...................................................................................................................24
U.S. Dept of Labor, News Release, US Department of Labor statement on We
Can Help campaign (June 24, 2010),. ................................................................19
U.S. Dept. of Labor, Fact Sheet #48: Application of U.S. Labor Laws to
Immigrant Workers: Effect of Hoffman Plastics decision on laws enforced by the
Wage and Hour Division (Revised 2008), ...........................................................18
U.S. Immigration and Customs Enforcement Special Agents Field Manual
33.14(h) ................................................................................................................20
viii
Although this amicus brief focuses on the conflict presented by Arizonas laws,
Amici also agree with the arguments made by Appellees that Arizonas identity
theft statutes unconstitutionally intrude on a field that was reserved for the federal
government. See Appellees Answering Br. Re: Prelim. Inj. 24-34, Dkt. No. 50.
2
protection, humanitarian, and law enforcement interests that are embodied in the
federal scheme, divests the federal government of its ability to implement its
balancing of enforcement priorities. Further, Arizonas law is conflict preempted
because it is divorced from the Congressional recognition, explicit in federal law,
that penalties for violating federal employment verification requirements should be
subordinated to the need to protect trafficked individuals and immigrant victims of
certain other crimes. This conflict is not merely a potential obstacle: the actions of
the Maricopa County Sheriffs Office (MCSO) demonstrate how enforcement of
the state laws has directly conflicted with federal policy goals.
Accordingly, Amici respectfully request that this Court uphold the injunction
against A.R.S. 13-2008(A) and 13-2009(A)(3).
ARGUMENT
I.
State Laws Are Preempted When they Conflict with the Federal
Governments Ability to Achieve a Balance of Statutory Objectives
A central principle[] of preemption is that a state law is preempted where
Mgmt Assn, 505 U.S. 88, 98 (1992). To determine whether state laws stand in
conflict with federal law, courts look[] to the provisions of the whole [federal]
law, and to its object and policy . . . . Id. (quotation omitted). Courts must
examine not only the state laws professed purpose, but also determine its effect on
the federal scheme. See id. at 105. A state law can present such an obstacle where
it interferes with the methods chosen by Congress to achieve its legislative
purposes and objectives. See Intl Paper Co. v. Ouellette, 479 U.S. 481, 494
(1987).
One way that such a conflict can occur is when the federal statutory scheme
amply empowers the [the federal government] to punish and deter the prohibited
behavior, and this authority is used by the federal government to achieve a
somewhat delicate balance of statutory objectives, but state law nonetheless
authorizes prosecutions for the same behavior, unmoored from the federal
governments delicate and deliberate balancing. Buckman Co. v. Plaintiffs Legal
Comm., 531 U.S. 341, 348 (2001). A state scheme that criminalizes, and thus
allows for prosecution of, the same activity, may be preempted where state law
fails to recognize the careful balance of interests contained in federal law. See
Arizona, 132 S. Ct. at 2505 (a [c]onflict in technique can be fully as disruptive to
the system Congress enacted as conflict in overt policy) (quoting Motor Coach
Employees v. Lockridge, 403 U.S. 274, 287 (1971)); see also Crosby v. Natl
4
Foreign Trade Council, 530 U.S. 363, 379 n.14 (2000) (Identity of ends does not
end our analysis of preemption.). Otherwise, the State would have the power to
bring criminal charges against individuals for violating a federal law even in
circumstances where federal officials in charge of the comprehensive scheme
determine that prosecution would frustrate federal policies. Arizona, 132 S. Ct. at
2503. For example, in Buckman, the Court held the state law fraud statutes were
preempted from being used to prosecute fraud-on-the-U.S. Food and Drug
Administration (FDA) claims because federal law empowers the FDA to pursue
a variety of options aimed at punishing and deterring fraud against the agency, and
these options afforded the agency the flexibility necessary for it to balance
difficult, and often competing, statutory objectives. Buckman, 531 U.S. at 34851;
see also Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199, 1206 (9th Cir. 2002)
(holding that federal preemption also applied in the fraud-on-the-U.S.
Environmental Protection Agency context).
II.
verification requirements and sanctions for fraud. These penalties, and their
method of implementation, have been carefully calibrated to allow the federal
government to balance enforcement with consideration of various interests at the
national level, including labor and employment protections. Allowing state
enforcement of parallel penalties for fraud in the employment verification context
undermines the federal control necessary to execute this careful balancing of
enforcement priorities, which has been reflected in various federal interagency
agreements, agency guidance, and agency memoranda. Indeed, MCSOs
enforcement of Arizonas identity fraud statutes concretely demonstrates the
obstacle that these laws present to the accomplishment of federal purposes and
objectives.
A. Congress Objectives in Enacting IRCA Involved a Complex Balance of
Interests
Congress enacted IRCA as a comprehensive framework for combating the
employment of illegal aliens. Arizona, 132 S. Ct. at 2504 (quoting Hoffman
Plastic Compounds, Inc. v. Natl Labor Relations Bd., 535 U.S. 137, 147 (2002)).
One of Congress purposes in enacting IRCA was to make combating the
employment of unauthorized immigrants central to [t]he policy of immigration
law. Hoffman 535 U.S. at 147 (quoting Immigration and Naturalization Serv. v.
Natl. Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 194 n.8 (1991)).
In IRCA, Congress also created the Office of Special Counsel for ImmigrationRelated Unfair Employment Practices within the U.S. Department of Justice to
enforce the new antidiscrimination provision, see IRCA, Pub. L. 99-603, 102(c),
see also 28 C.F.R. 0.53, and provided for funds for the Department of Labors
Wage and Hour Division to bolster enforcement of employment laws for
undocumented workers. See IRCA, Pub. L. 99-603, 111(d).
8
employment. H.R. REP. NO. 99-682 (II), at 1-2, reprinted in 1986 U.S.C.C.A.N. at
5758 (To [limit employment protections] would be counter-productive of our
intent to limit the hiring of undocumented employees and the depressing effect on
working conditions caused by their employment.). In passing IRCA, Congress
thus explicitly intended to safeguard labor protections in existing law in order to
prevent a race to the bottom by unscrupulous employers. H.R. REP. NO. 99-682(I),
at 8, reprinted in 1986 U.S.C.C.A.N. at 5662.
This logic has been routinely affirmed by courts in the years since IRCAs
passage. Ensuring that employees without work authorization receive the same
minimum labor protections as work-authorized workers removes the economic
incentive for employers to hire unauthorized workers. See Sure-Tan, Inc. v. Natl
Labor Relations Bd., 467 U.S. 883, 893 (1984) (finding that [i]f an employer
realizes that there will be no advantage under the NLRA in preferring illegal aliens
to legal resident workers, any incentive to hire such illegal aliens is
correspondingly lessened); Patel v. Quality Inn S., 846 F.2d 700, 704-05 (11th
Cir. 1988) (FLSAs coverage of undocumented aliens goes hand in hand with the
policies behind the IRCA. Congress enacted IRCA to reduce illegal immigration
by eliminating employers economic incentive to hire undocumented
aliensFLSAs coverage of undocumented workers has a similar effect.);
Farmer Bros. Coffee v. Workers Comp. Appeals Bd., 35 Cal. Rptr. 3d 23, 28 (Cal.
9
See also Immigration Reform and Control Act of 1985: Hearings before the
Senate Subcommittee on Immigration and Refugee Policy, 99th Cong. 59 (1985)
(statement of Sen. Simpson, Chairman, S. Comm. on the Judiciary) ([I]t was my
10
thought, and the thought of the Select Commission, we ought to try the most
humane [way] first, which is to reduce the magnet of jobs.).
5
While Arizonas identity theft statutes are potentially punishable by a prison
term that may exceed five years, the federal penalties only carry prison sentences
of five years or less. Puente Arizona v. Arpaio, 76 F. Supp. 3d 833, 858 (D. Ariz.
2015). Federal law also establishes a range of civil penalties to disincentivize use
of false documents in the employment verification context that are not
contemplated by Arizonas regulatory scheme. See, e.g., 8 U.S.C.
1227(a)(3)(C)(i) (creating immigration consequences for fraud in the employment
verification process); 8 U.S.C. 1182(a)(6)(C) (creating immigration
consequences for false claims to citizenship); 8 U.S.C. 1324c (providing for
potential fines for falsely using a document to obtain employment). As the district
court correctly noted, these different sanctions that layer additional penalties
atop federal law, likely result in conflict preemption. Puente Arizona, 76 F. Supp.
3d at 858 (quoting Georgia Latino Alliance for Human Rights v. Governor of
Georgia, 691 F.3d 1250, 1267 (11th Cir. 2012) (GLAHR)).
11
with respect to unauthorized employment of aliens. Arizona, 132 S. Ct. at 250405 (striking down Arizona provision criminalizing unauthorized employment).
While the federal employment verification system imposes penalties for the
use of fraudulent documents in the context of employment eligibility verification,
Congress also prohibited the information provided pursuant to these requirements
from being used for any purpose other than those specified by federal law. See id.
(Congress has made clearthat any information employees submit to indicate
their work status may not be used for purposes other than prosecution under
specified federal criminal statutes for fraud, perjury, and related conduct.)
(emphasis added); see also United States v. Arizona, 641 F.3d 339, 359 (9th Cir.
2011), affd in part, revd in part and remanded, Arizona, 132 S. Ct. 2492 (2012)
(federal law would prohibit Arizona from using personal information in the
verification system for the purpose of investigating or prosecuting violations of its
unconstitutional state law that criminalized unauthorized employment.).
This limitation on the use of information that is required by the federal
employment verification system to prosecution under specific federal statutes
serves to ensure federal control of the criminalization of these actions because only
federal prosecutors can bring these charges, and these charges can only be brought
in federal court. See 18 U.S.C. 3231 (The district courts of the United States
shall have original jurisdiction, exclusive of the courts of the States, of all offenses
12
against the laws of the United States.). The provisions of Arizonas identity theft
statutes dealing with employment divest federal authorities of the exclusive power
to prosecute these employment verification violations. As the U.S. Supreme Court
has recognized, states attempts to independently engage in the enforcement of
immigration related laws diminish the [Federal Government]s control over
enforcement and detract from the integrated scheme of regulation created by
Congress. Arizona, 132 S. Ct. at 2502 (holding Arizona preempted from
prosecuting state alien registration crimes) (internal quotation marks omitted).
Indeed, the diminishment of federal control that would occur if states were
allowed to bring their own prosecutions for fraud in the employment verification
process is similar to that which multiple federal courts, including this circuit, have
recognized can occur in the context of laws criminalizing the harboring and
transporting of unauthorized immigrants. Federal circuits have unanimously held
that federal harboring statutes are part of an extensive and complex federal
scheme of criminal sanctions for those who facilitate the unlawful entry, residence,
or movement of aliens within the United States. Valle del Sol Inc. v. Whiting, 732
F.3d 1006, 1024 (9th Cir. 2013) cert. denied sub nom. Arizona v. Valle Del Sol
Inc., 134 S. Ct. 1876 (2014); see also United States v. Alabama, 691 F.3d 1269,
1285 (11th Cir. 2012) (holding federal law provides a comprehensive framework
to penalize the transportation, concealment, and inducement of unlawfully present
13
aliens); GLAHR, 691 F.3d at 1263-64; United States v. South Carolina, 720 F.3d
518, 531-32 (4th Cir. 2013). The Ninth Circuit recognized with respect to
Arizonas harboring statute that was held preempted:
the current federal scheme reserves prosecutorial power, and thus
discretion, over smuggling violations to federal prosecutors. By
allowing state prosecution of the same activities in state court,
Arizona has conferred upon its prosecutors the ability to prosecute
those who transport or harbor unauthorized aliens in a manner
unaligned with federal immigration enforcement priorities. In other
words, the State would have the power to bring criminal charges
against individuals for violating a federal law even in circumstances
where federal officials in charge of the comprehensive scheme
determine that prosecution would frustrate federal policies.
Valle del Sol Inc., 732 F.3d at 1027 (quoting Arizona, 132 S. Ct. at 2503); see also
South Carolina, 720 F.3d at 531-32 (holding that state harboring statute
improperly place[d] in the hands of state officials the nations immigration policy,
and strip[ped] federal officials of the authority and discretion necessary in
managing foreign affairs); GLAHR, 691 F.3d at 1265-66 ([i]nterpretation of
[state law mirroring federal immigration law] by state courts and enforcement by
state prosecutors unconstrained by federal law threaten the uniform application of
the INA); Alabama, 691 F.3d at 1287 (by confining the prosecution of federal
immigration crimes to federal court, Congress limited the power to pursue those
cases to the appropriate United States Attorney) (internal quotation marks
omitted); Utah Coal. of La Raza v. Herbert, 26 F. Supp. 3d 1125, 1145 (D. Utah
2014) (finding that state criminalization of the same types of behavior as federal
14
of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e-2000e-17, and
the National Labor Relations Act (NLRA), 29 U.S.C. 151-169, all protect the
rights of workers by prohibiting employers from using workers immigration status
as a means of retaliating against them for asserting their rights under these laws.
The FLSA, which was enacted to eliminate substandard working conditions
in the industries within its coverage, specifically provides employees protection
from retaliation in order to insulate employees from adverse actions from their
employers if they complain about a violation of its standards. See 29 U.S.C.
215(a)(3); Bailey v. Gulf Coast Transp., Inc., 280 F.3d 1333 (11th Cir. 2002);
Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 135 (W.D.N.Y. 2003) (noting the
anti-retaliation provision is critical to the entire enforcement scheme of federal
wage and hour law); cf. Equal Emp. Opportunity Commn v. Locals 14 and 15,
Intl Union of Operating Engrs, 438 F. Supp. 876, 87980 (S.D.N.Y. 1977)
(witnesses who are [] retaliated against because of their testimony, are going to
be much less likely to testify in a subsequent proceeding ... if such retaliation goes
unchecked.). Undocumented workers are protected against immigration-based
retaliation through this anti-retaliation provision.6 See Contreras v. Corinthian
The U.S. Department of Labor (DOL) has also consistently held that the
substantive protections of the FLSA apply to workers regardless of their
immigration status. See, e.g., U.S. Dept. of Labor, Fact Sheet #48: Application of
U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastics decision on
laws enforced by the Wage and Hour Division (Revised 2008),
18
Vigor Ins. Brokerage, Inc., 103 F. Supp. 2d 1180, 1185 (N.D. Cal. 2000) (holding
employers reporting of plaintiffs undocumented status to federal immigration
officials days after a conference in her unpaid wage claim constituted retaliation);
Singh v. Jutla & C.D. & R's Oil, Inc., 214 F. Supp. 2d 1056, 1059 (N.D. Cal. 2002)
(holding employers threat to call immigration authorities unless plaintiff withdrew
his unpaid wage claim stated a claim for retaliation under FLSA). Similarly, courts
have found that immigration-based retaliation against workers is actionable under
Title VII, see, e.g., Equal Emp. Opportunity Commn v. The Restaurant Co., 490 F.
Supp. 2d 1039, 1050 (D. Minn. 2007) (finding even if [plaintiff] is
undocumented, she still has standing to pursue her Title VII claims, and allowing
her claim of immigration-based retaliation to proceed), and under the NLRA, see,
e.g., AM Property Holding Corp., Maiden 80/90 NY LLC and Media Technology
Centers, 352 NLRB 279, 282 (2008) (finding an employers threat to investigate
the immigration status of its employees in retaliation for providing testimony at an
NLRB proceeding was an unfair labor practice).
To ensure IRCAs employment verification requirements do not
inadvertently undermine these protections, the various federal agencies enforcing
the respective statutes have had to strike a deliberate balance in their worksite
enforcement activities. The federal government has adopted an array of
interagency agreements, agency guidance, and interagency protocols to effectuate
and maintain that balance. Two federal policiesthe Revised Memorandum of
Understanding between the Departments of Homeland Security and Labor
Concerning Enforcement Activities at Worksites (Dec. 7, 2011), (DHS-DOL
MOU), http://www.dol.gov/asp/media/reports/DHS-DOL-MOU.pdf, (See Amicis
App. B), and the ICE Operating Instruction 287.3a, Questioning persons during
labor disputes, (OI 287.3a),
http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-053690/0-0-0-61072/0-0-0-61097.html, (See Amicis App. B) 7reflect the balance
of national interests that the federal government has struck to ensure that its
worksite immigration enforcement actions do not undermine its enforcement of
labor and employment laws. In the DHS-DOL MOU, the Department of
Homeland Security (DHS) and the DOL acknowledge that effective
enforcement of labor law is essential to ensure proper wages and working
conditions for all covered workers regardless of immigration status. DHS-DOL
MOU at 1. The MOU reflects the agencies shared desire to protect immigrant
OI 287.3a, initially adopted in 1996, was re-designated on April 28, 2000 as U.S.
Immigration and Customs Enforcement (ICE) Special Agents Field Manual
33.14(h).
20
the DOLs investigation effectively. Indeed, the record reflects that MCSOs
enforcement operations have, in fact, chilled workers from reporting workplace
violations out of a fear [of] being taken by the Sheriff or having their employer
report them to law enforcement. 14-ER-3187, Garcia Decl. 19; see also 14-ER3193, de la Fuente Decl. 7 (attesting that the most common reason workers were
reluctant to assert their rights under the labor and employment laws was because
they were concerned about retaliation based on their immigration status.); 14-ER3196, Romero Decl. 9 (attesting that I never complained about not getting paid
overtime . . . because I was afraid my employer would retaliate against me.). 9
Similarly, the record demonstrates that MCSOs practice has included
receiving hotline tips and basing enforcement actions on those tips,10 revealing
another problem with allowing state enforcement of the identity theft in
employment provisions. These actors, unlike federal officials, are not required to
26
Arizonas identity theft statutes also conflict with federal law and policy
because they allow for prosecution of victims of human trafficking or of certain
other crimes despite Congress explicit intent that these individuals be insulated
from penalties for using false identity documents to secure employment. Congress,
through the Victims of Trafficking and Violence Protection Act of 2000
(VTVPA), Pub. L. 106-386, 114 Stat. 1464, provides immigration relief to
undocumented immigrants who have been the victim of human trafficking or of
certain crimes through the provision of T and U visas.11 See generally 8 U.S.C.
11
subject an undocumented worker who has been the victim of trafficking to state
prosecution for using documents that are not her own, directly conflicting with
Congress express intent to protect victims of trafficking from punishment for
using false documents. 22 U.S.C 7101(b)(19). Here, Arizonas state identity
theft statutes contain no provision to determine whether individuals may have been
the victims of trafficking or other criminal activity. Indeed, MCSOs systematic
enforcement of the state identity theft laws against immigrant workers, unmoored
from the federal interests in protecting immigrant trafficking and crime victims,
has resulted in a chilling effect that undermines the ability of MCSO to serve
immigrant crime victims effectively, which, in turn, undermines the ability of
MCSO to identify and prosecute crimes committed against immigrants.13
//
//
//
13
CONCLUSION
For the reasons in Appellees brief and the reasons above, Amici respectfully
request that this Court uphold the injunction of A.R.S. 13-2008(A) and 132009(A)(3).
Respectfully Submitted,
NATIONAL IMMIGRATION LAW CENTER
/s Joshua T. Stehlik
Joshua T. Stehlik, SBN 220241
Nicholas D. Espiritu, SBN 237665
3435 Wilshire Blvd., Suite 2850
Los Angeles, CA 90010
stehlik@nilc.org
espiritu@nilc.org
Telephone: 213.639.3900
Facsimile: 213.639.3911
Counsel for Amicus Curiae
31
/s Joshua T. Stehlik
Joshua T. Stehlik
32
APPENDIX A
Pursuant to Federal Rules of Appellate Procedure 29(c) and 26.1, Amici
are each non-profit organizations, with no parent corporations or publicly traded
stock and provide the following:
The National Immigration Law Center (NILC) is the primary national
organization in the United States exclusively dedicated to defending and advancing
the rights and opportunities of low-income immigrants and their families. Over the
past 35 years, NILC has won landmark legal decisions protecting fundamental
rights, and advanced policies that reinforce our nations values of equality,
opportunity, and justice. NILCs interest in the outcome of this case arises from its
first-hand experience with the ways that immigration-based retaliation against
workers chills them from asserting their workplace rights, which, in turn, erodes
workplace standards for all workers.
Advocates for Basic Legal Equality, Inc. (ABLE) is an unrestricted
legal services program that provides representation to low-income groups and
individuals. One of its practice groups, the Agricultural Worker and Immigrant
Rights Practice Group, has litigated a number of lawsuits on behalf of immigrants
and groups with large numbers of immigrant members, including the Ohio
Immigrant Worker Project and the Farm Labor Organizing Committee, AFL-CIO.
This litigation has included employment, immigration and civil rights issues,
33
including wage and working conditions claims, sexual harassment claims, profiling
of Hispanics by local, state and federal law enforcement agencies, issuance of
marriage licenses to persons without Social Security numbers, and filing habeas
corpus petitions for detained immigrants.
The Arizona Border Rights Foundation (DBA) Coalicin de Derechos
Humanos (DH), based in Tucson, Arizona, is a grassroots organization which
promotes respect for human/civil rights and fights the militarization of the
Southern Border region, discrimination, and human rights abuses by federal, state,
and local law enforcement ocials aecting U.S. and non U.S. citizens alike. The
Arizona identity theft laws and their enforcement apparatus have used the criminal
justice system to target workers based on their immigration status, a function that
is wholly a federal responsibility. Our community has faced hundreds of criminal
convictions, incarcerations and the collateral consequences from these policies.
Asian Americans Advancing Justice - Asian Law Caucus (Advancing
Justice - ALC) was founded in 1972 with a mission to promote, advance, and
represent the legal and civil rights of Asian and Pacific Islanders, with a particular
focus on low-income members of those communities. Advancing Justice - ALC is
part of a national affiliation of Asian American civil rights groups, with offices in
Los Angeles, Chicago, Washington DC, and Atlanta. Advancing Justice - ALC
has a long history of protecting low-wage immigrant workers through direct legal
34
workers to have livable wages and dignified lives and opposes immigration-based
retaliation practices that diminish the rights of workers and create conditions of
abuse and exploitation.
The Center for Neighborhood Leadership of Phoenix, Arizona, is an
anchor organization that is shifting the landscape of social justice, community
development, and community-driven public policy by training under-represented,
low-income Arizonans to engage stakeholders in meaningful dialogue, form
collaborative partnerships, and take action to address local issues. Sheriff Arpaio's
racially biased, predatory, and unlawful use of state identity theft laws has
victimized our families, volunteers, members, and the community at large. Center
for Neighborhood Leadership's volunteers and their family members have been
targeted, arrested, jailed, and deported as a result of Sheriff Arpaio's workplace
raids. Those unlawful actions against immigrant workers have had devastating
repercussions on families including, homelessness, hunger, and the endless
heartache of family separation. Moreover, Sheriff Arpaio has created a widespread
culture of fear of the police and crime reporting that further terrorizes victims of
crime as well as undermines the Maricopa County Sheriffs Office's mandate to
protect and serve our community.
Central Arizonans for a Sustainable Economy (CASE), based in
Phoenix, Arizona, is committed to quality jobs and fair working conditions for all
37
Arizonans. The use of state identity theft laws to criminally prosecute immigrant
workers for "misusing identity information in order to obtain employment" creates
an additional tool employers can use to intimidate and exploit their employees.
Holding the threat of deportation and identity theft prosecution over the heads of
workers those very employers brought into their company to complete important
tasks is a tactic we see all too often, and one that needs to stop. The Maricopa
County Sheriff's Office should not be twisting statutes for the purpose of pursuing
workers whose only wish is to be able to provide for their families.
Centro Legal de la Raza (Centro Legal) has, since 1969, provided legal
aid services to low-income, predominantly Spanish-speaking residents of
Oakland's Fruitvale District and the greater Bay Area. Centro Legal represents
thousands of workers, tenants, and immigrants annually. Centro Legal works to
protect the legal rights of all workers, regardless of their immigration status.
Immigrant workers are especially vulnerable to employer abuse, and in the
previous two years Centro Legal has recovered for workers over one million
dollars in stolen wages. The outcome of this case is important to our clients
because employers too often unlawfully take advantage of immigrant workers who
are afraid to assert their rights, and protections are needed to prevent such
exploitation.
38
Eloy, Arizona, some of whom are Maricopa County residents. The Clinic's clients
include actual or potential asylum seekers, victims of severe forms of human
trafficking, survivors of domestic violence and other crimes, individuals potentially
eligible to immigrate through petitions filed by U.S. citizen or permanent resident
family members, long-term residents of the U.S. eligible for humanitarian waivers
of removal, and individuals who may be subject to removal but qualify for
prosecutorial discretion. The Clinic has a direct interest in the outcome of this case
because, depending the circumstances of the case, a criminal conviction may
render an individual ineligible for certain immigration benefits or may create
hurdles to obtaining such benefits.
Jobs With Justice is a national network bringing together labor,
community, student, and faith at the national and local levels to fight for
employment security and a decent standard of living for workers. Our interest in
supporting the plaintiff in this case stems from our experience supporting workers
who find themselves at the nexus of immigration and workplace laws. We have
seen the imperative need to balance immigration enforcement with the
enforcement of labor and employment laws. We believe this balance is best
achieved through federal policies and practices.
Jobs with Justice, Tucson Chapter, is one of 26 local coalitions that are
part of the national Jobs with Justice organization. Being in a city that is the sixth
41
poorest in the nation and living in a state with the Right to Work laws since 1947,
combined with an unrelenting attack on immigrants, is a formula for disaster for all
who toil in this area. The further criminalization of immigrant workers through the
unjust and added burden of identity theft is simply and painfully another tool used
by racist exploiters of labor to depress the overall wages of everyone. In the
struggle for economic and social justice it is absolutely imperative to peel away the
legal hindrances that keep working people poor and oppressed.
The Legal Aid SocietyEmployment Law Center (LAS-ELC) is a
nonprofit legal services organization, founded in 1916, that litigates cases
nationwide on behalf of low-wage workers, particularly those who belong to
traditionally subordinated communities. Through its Immigration and National
Origin Program, LAS-ELC endeavors to protect the rights of individuals who face
discrimination because they belong to a particular ethnic community, or because
they or their ancestors immigrated to the United States. As part of this work, LASELC has litigated numerous cases vindicating the ability of workers to protect their
legal rights irrespective of their immigration status and despite the prospect of
employer retaliation. LAS-ELC has a deep interest in the outcome of the present
case, because a finding that that IRCA does not preempt the laws and practices at
issue would frustrate the strong federal policy in favor of the vigorous enforcement
of workplace protections that IRCA, in fact, embodied.
42
Living United for Change in Arizona (LUCHA) organizes Arizonas lowand moderate-income and minority families to take action on the issues most
important to them and advance the cause of social and economic justice for all.
Through leadership development, grassroots issue-based campaigns, advocacy and
civic engagement, we seek to create an Arizona in which every resident has an
equal voice in determining the policies and shaping the decision-making bodies
that will govern our communal life. LUCHA organizes a very diverse constituency
or workers and immigrants. Our workers face daily issues such as wage theft,
being underpaid, overworked with little to no sick days, and work place raids.
Immigration is another issue that has affected our constituency through the most
heinous discrimination practices, as exemplified by Arizonas SB1070. SB1070
brought work place raids, home raids, police profiling of minorities, family
separation and detention. Thousands of immigrant families left our state,
construction, fast food and hospitality sectors being directly affected by the mass
exodus of families, workers and students. Currently, we still see the effects of
SB1070 and racial profiling as many of our members have family members that
have been detained or deported due to the predatory and discriminatory practices
of Sheriff Arpaio.
The National Employment Law Project (NELP) has worked for nearly 45
years to advance the workplace rights of low-wage and immigrant workers. Both
43
directly and through its partnerships with community groups, civil rights groups
and worker organizations, NELP has represented thousands of immigrant workers
attempting to enforce their labor rights. NELP attorneys have written, lectured,
litigated, and engaged in policy advocacy on behalf of low-wage immigrant
workers throughout the United States.
The New Orleans Workers Center for Racial Justice is a non-profit
membership organization that was founded in the aftermath of Hurricane Katrina
in response to the structural exclusion of African Americans and the brutal
exploitation of immigrants across the Gulf Coast South. The organization has over
1,000 members spanning across the States of Louisiana, Mississippi, and Texas
including day laborers, temporary guestworkers, and African American residents who work collectively towards workers rights, racial equality and human dignity
for all.
The North Carolina Justice Center's core mission is to advance economic
and social justice for low-income and marginalized individuals and communities
across North Carolina. To make opportunity and prosperity for all a reality, we
work to secure jobs that are safe and pay a living wage; access to quality health
care; consumer protections from abusive business practices; quality education for
every child; safe and affordable housing; and fair treatment, regardless of race,
ethnicity, or country of origin. The Centers work includes a special focus on
44
47
48
APPENDIX B
INDEX OF APPENDIX B
Description
Appendix B Page.
No.
53
56
61
65
50
68
8/28/2015
OI287.3aQuestioningpersonsduringlabordisputes.(Revised12/04/96AddedtoINSERTSApril99)
Case: 15-15211,
08/31/2015, ID: 9666315, DktEntry: 60, Page 64 of 106
\slb\SERVICELAWBOOKSMENU\OperatingInstructions\OI287Fieldofficerspowersand
duties.\OI287.3aQuestioningpersonsduringlabordisputes.(Revised12/04/96Addedto
INSERTSApril99)
PreviousDocumentNextDocument
OI287.3aQuestioningpersonsduringlabordisputes.(Revised12/04/96Addedto
INSERTSApril99)
Wheninformationisreceivedconcerningtheemploymentofundocumentedorunauthorizedaliens,
considerationshouldbegiventowhethertheinformationisbeingprovidedtointerferewiththerights
ofemployeestoform,joinorassistlabororganizationsortoexercisetheirrightsnottodosotobe
paidminimumwagesandovertimetohavesafeworkplacestoreceivecompensationforwork
relatedinjuriestobefreefromdiscriminationbasedonrace,gender,age,nationalorigin,religion,
handicaportoretaliateagainstemployeesforseekingtovindicatetheserights.
WheneverinformationreceivedfromanysourcecreatesasuspicionthatanINSenforcement
actionmightinvolvetheServiceinalabordispute,areasonableattemptshouldbemadebyService
enforcementofficerstodeterminewhetheralabordisputeisinprogress.TheInformationOfficerat
theRegionalOfficeoftheNationalLaborRelationsBoardcansupplystatusinformationonunfair
laborpracticechargesorunionelectionordecertificationpetitionsthatarependinginvolvingmost
privatesector,nonagriculturalemployers.Wageandhourinformationcanbeobtainedfromthe
UnitedStatesDepartmentofLabor(WageandHourDivision)orthestatelabordepartment.
InordertoprotecttheServicefromunknowinglybecominginvolvedinalabordispute,persons
whoprovideinformationtotheServiceabouttheemployeroremployeesinvolvedinthedispute
shouldbeaskedthefollowing:1)theirnames2)whetherthereisalabordisputeinprogressatthe
worksite3)whethertheyareorwereemployedattheworksiteinquestion(orbyaunion
representingworkersattheworksite)and4)ifapplicable,whethertheyareorwereemployedina
supervisoryormanagerialcapacityorrelatedtoanyonewhois.Informationshouldbeobtained
concerninghowtheycametoknowthatthesubjectslackedlegalauthorizationtowork,aswellasthe
sourceandreliabilityoftheirinformationconcerningthealiens=status.
Itisalsoappropriatetoinquirewhetherthepersonswhoprovidetheinformationhadorhavea
disputewiththeemployerofthesubjectsoftheinformation.Likewise,thepersonprovidingthe
informationaboutthealiensshouldbeaskedifthesubjectsoftheinformationhaveraisedcomplaints
orgrievancesabouthoursorworkingconditions,discriminatorypracticesoraboutunion
representationoractions,orwhethertheyhavefiledworkers'compensationclaims.
GenerallythereisnoprohibitionforenforcingtheImmigrationandNationalityAct,evenwhenthere
maybealabordisputeinprogress.However,whereitappearsthatinformationmayhavebeen
providedinordertointerferewithortoretaliateagainstemployeesforexercisingtheirrights,no
actionshouldbetakenonthisinformationwithoutthereviewoftheDistrictCounselandapprovalof
theAssistantDistrictDirectorforInvestigationsoranAssistantChiefPatrolAgent.
WhenServiceenforcementactionistakenanditisthendeterminedthattherewasalabordispute
inprogress,orthattheinformationwasprovidedtotheServicetoretaliateagainstemployeesfor
exercisingtheiremploymentrights,theleadimmigrationofficerinchargeoftheServiceenforcement
teamattheworksitemustensuretotheextentpossiblethatanyarrestedordetainedaliens
necessaryfortheprosecutionofanyviolationsarenotremovedfromthecountrywithoutnotifyingthe
appropriatelawenforcementagencywhichhasjurisdictionovertheseviolations.
Anyarrangementsforalienstobeheldortobeinterviewedbyinvestigatorsorattorneysforthe
stateorfederalDepartmentofLabor,theNationalLaborRelationsboardorotheragencies/entities
51
http://www.uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0001/00053690/00061072/00061097.html?topic_id=0
1/2
8/28/2015
OI287.3aQuestioningpersonsduringlabordisputes.(Revised12/04/96AddedtoINSERTSApril99)
Case: 15-15211,
08/31/2015, ID: 9666315, DktEntry: 60, Page 65 of 106
enforcinglabor/employmentlawswillbedeterminedonacasebycasebasis.
\slb\SERVICELAWBOOKSMENU\OperatingInstructions\OI287Fieldofficerspowersand
duties.\OI287.3aQuestioningpersonsduringlabordisputes.(Revised12/04/96Addedto
INSERTSApril99)
PreviousDocumentNextDocument
52
http://www.uscis.gov/sites/default/files/ilink/docView/SLB/HTML/SLB/0001/00053690/00061072/00061097.html?topic_id=0
2/2
54
55
56
57
58
59
60
8/28/2015 FactSheet:EstablishmentofInteragencyWorkingGroupfortheConsistentEnforcementofFederalLabor,EmploymentandImmigrationLawsU.S.De
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 74 of 106
UnitedStatesDepartmentofLabor
SecretaryofLaborThomasE.Perez
FactSheet:EstablishmentofInteragencyWorking
GroupfortheConsistentEnforcementofFederalLabor,
EmploymentandImmigrationLaws
Federalagenciesresponsibleforworkerprotectionsseektoprotectallworkersfromexploitationandworkers
rightsviolations,regardlessofimmigrationstatus.Manyworkers,however,aredeterredorpreventedfrom
assertingworkplacerightsandprotections.Insomecases,employersmayexploitimmigrationstatustodeter
employeesfromassertingtheirrights.Inothercases,theprotectionsavailabletoworkersareunclear.To
promoteeffectiveenforcementoffederallabor,employment,andimmigrationlaws,theAdministrationis
announcingthecreationofaninteragencyworkinggrouptoidentifypoliciesandproceduresthatpromotethe
consistentenforcementofthoselawsandprotectallworkersintheU.S.
Thisworkinggroupwillbecomprisedoffederalimmigrationenforcementagenciesandfederalagencies
responsibleforworkerprotections,includingtheDepartmentofLabor,DepartmentofHomelandSecurity,
DepartmentofJustice,EqualEmploymentOpportunityCommissionandNationalLaborRelationsBoard.
Theworkinggroupwillseekto:
Ensureagenciesimmigrationenforcementandworkerprotectionpolicies,promoteworkerscooperationwith
laborandemploymentlawenforcementauthoritieswithoutfearofretaliation
Ensurefederalenforcementauthoritiesarenotusedbypartiesseekingtoundermineworkerprotectionlaws
byenmeshingimmigrationauthoritiesinlabordisputesand,
Ensuretheconsistentenforcementoffederallabor,employment,andimmigrationlaws.
Toachievetheseobjectivestheworkinggroupwill:
Developpoliciesandprocedurestoensureconsistentenforcementoflabor,employment,andimmigration
laws
Developconsistentstandardsandproceduresforimmigrationagenciestocontactlaboragencieswhenthey
encounterapotentiallabordisputewithinthemeaningoftheRevisedMemorandumofUnderstanding
betweentheDepartmentsofHomelandSecurityandLaborConcerningEnforcementActivitiesatWorksites,
executedonDecember7,2011
Providegreaterclaritytoworkers,workerrepresentatives,advocates,andemployersregardingprocessesand
proceduresontheintersectionbetweenimmigrationlawenforcementandlaborandemploymentlaw
enforcement
Strengthenprocessesforstayingtheremovalof,andprovidingtemporaryworkauthorizationfor,
undocumentedworkersassertingworkplaceclaimsandforcasesinwhichaworkplaceinvestigationor
proceedingisongoingand
Providestakeholdersopenandtransparentmodesofcommunicationwithenforcementauthorities.
http://www.dol.gov/dol/factsheet/immigration/interagencyworkinggroup.htm
61
1/2
8/28/2015 FactSheet:EstablishmentofInteragencyWorkingGroupfortheConsistentEnforcementofFederalLabor,EmploymentandImmigrationLawsU.S.De
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 75 of 106
Theworkinggroupwillprovideopportunitiesforcommunicationwithexternalstakeholders,includingworkers,
workerrepresentatives,advocatesandemployersasappropriate.
http://www.dol.gov/dol/factsheet/immigration/interagencyworkinggroup.htm
62
2/2
8/28/2015
FactSheet:InteragencyWorkingGroupfortheConsistentEnforcementofFederalLabor,EmploymentandImmigrationLawsActionPlanU.S.Depart
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 76 of 106
UnitedStatesDepartmentofLabor
SecretaryofLaborThomasE.Perez
InteragencyWorkingGroupfortheConsistent
EnforcementofFederalLabor,Employmentand
ImmigrationLawsActionPlan
OnNovember20,2014,thefederalgovernmentannouncedtheformationoftheInteragencyWorkingGroupfor
theConsistentEnforcementofFederalLabor,EmploymentandImmigrationLaws(InteragencyWorkingGroup),
comprisedoftheDepartmentofLabor,DepartmentofHomelandSecurity,DepartmentofJustice,Equal
EmploymentOpportunityCommissionandNationalLaborRelationsBoard.ThisInteragencyWorkingGroup
buildsontheexistingrelationshipsbetweenthememberdepartmentsandagenciesandagreementssuchasthe
DepartmentofLaborandtheDepartmentofHomelandSecurity'sRevisedMemorandumofUnderstanding
ConcerningEnforcementActivitiesatWorksites(2011).
TheInteragencyWorkingGroup'sgoalsaretoenhancecoordinationinthosecaseswherefederalresponsibilities
toenforcelabor,employment,andimmigrationlawsmayoverlap,toensurethatworkerswhocooperatewith
laborandemploymentenforcementmaycontinuetodosowithoutfearofretaliation,toensurethat
unscrupulouspartiesdonotattempttomisuseimmigrationenforcementorlaborlawstothwartormanipulate
workerprotectionsorlaborandimmigrationenforcement,andtoensuretheeffectiveenforcementoftheselaws.
Toachievethesegoals,theInteragencyWorkingGroupcommitstopursuingthefollowingtasks:
Identifyandrecommend,asneeded,policiesandproceduresthatensureeffectiveenforcementoflabor,
employment,andimmigrationlawsandpreventtheabuseofthelegalprocesstounderminethat
enforcement
Developconsistentinternalstandardsandproceduresforagenciestoresolveconflictsregardingongoingcivil
investigationsintotheviolationofimmigrationandlaborlaws
Providegreaterclaritytoworkers,workerrepresentatives,advocates,employersandfederalagencies
regardingprocessesandprocedureswhenimmigrationlawenforcementandlaborandemploymentlaw
enforcementintersect
Reviewexistingprocessesforstayingtheremovalofcertainundocumentedworkerswhoassertmeritorious
workplaceclaims,providingaccesstoapplyfortemporaryemploymentauthorizationwhenconsistentwith
regulationsandpolicy,andestablishinginteragencycoordinationtofacilitatetheseactionsinappropriate
casesand
Provideopenandtransparentmodesofcommunicationbetweenenforcementauthoritiesandexternal
stakeholders,includingworkers,workerrepresentatives,advocatesandemployers,asappropriate.
WithinsixmonthsoftheissuanceofthisActionPlan,theInteragencyWorkingGroupwillhaveinitiatedor
completedthefollowingsteps:
EstablishregularmeetingsoftheInteragencyWorkingGrouptoensureclosercoordination,andastrong
networkofcontactsacrossdepartmentsandagenciesthatwillconvenethroughouttheimplementationof
thisActionPlanandcontinuethereafterforaslongastheInteragencyWorkingGroupdeemsnecessary.
ProduceacoordinatedsetofresourcesonWorkplaceProtectionsandImmigrationEnforcement.These
http://www.dol.gov/dol/factsheet/immigration/IWGSixMonthActionPlan.htm
63
1/2
8/28/2015
FactSheet:InteragencyWorkingGroupfortheConsistentEnforcementofFederalLabor,EmploymentandImmigrationLawsActionPlanU.S.Depart
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 77 of 106
resources,whichmaybemadeavailableasahandbook,online,orinotherformatsdeemedeasilyaccessible
tothepublic,willinclude:
AcompilationofrelevantagreementsbetweenInteragencyWorkingGroupmembers,aswellasappropriate
agencyguidanceontheintersectionbetweenimmigrationlawenforcementandlaborandemploymentlaw
enforcementthatpresentlyexistsormaybecreatedaspartofthisActionPlan
Clearexplanationsandmethodsforaccessinganytemporaryorpermanentimmigrationbenefitsorrelief
thatmaybeavailableastheresultofworkplaceviolationsorcriminalactivityintheworkplace.Thiswill
includeinformationonhowtoseekastayofdeportationorremoval,significantpublicbenefitor
humanitarianparole,deferredaction,andotherexercisesofprosecutorialdiscretion.Thiswillalsoinclude
informationonhowtoobtainemploymentauthorization,ifavailable
Clearguidancetoemployersonavoidingretaliationandexplainingtheirobligationstoworkersinthecase
ofaworkplacedispute,includingguidanceonavoidingdiscriminationwhenconductinganinternal
EmploymentEligibilityVerificationFormI9Auditand
InstructionsonwaysforthepublictoengagetheInteragencyWorkingGroupanditsmemberswithrelated
inquiries.
FacilitateformalcommunicationandprocessesamongInteragencyWorkingGroupmembers.Inparticular,
theInteragencyWorkingGroupwillidentifyprocedurestoensuretherespectivecivilauthoritiesofits
membersdonotconflict.InteragencyWorkingGroupMembersalsoagreetoexploredevelopmentof
potentialagreementsorotherproceduresasappropriate.
Maintainarobustdialoguewithstakeholders,includingworkers,workerrepresentatives,advocates,and
employersasappropriate,throughpublicengagement.
Engageotherfederalorstateagenciesandofficialsonanadhocbasisasnecessarytoachievearticulated
goalsandobjectives.
http://www.dol.gov/dol/factsheet/immigration/IWGSixMonthActionPlan.htm
64
2/2
8/28/2015
WHDNewsRelease:USDepartmentofLaborstatementonWeCanHelpcampaign[06/24/2010]
Case: 15-15211,
08/31/2015, ID: 9666315, DktEntry: 60, Page 78 of 106
UnitedStatesDepartmentofLabor
SecretaryofLaborThomasE.Perez
NewsRelease
WHDNewsRelease:[06/24/2010]
ContactName:DollineHatchett
PhoneNumber:(202)6934667
ReleaseNumber:100890NAT
USDepartmentofLaborstatementonWeCanHelpcampaign
WASHINGTONInresponsetoquestionsregardingtheU.S.DepartmentofLabor'sWageandHourDivision's
"WeCanHelp"campaignanefforttoeducateworkersacrosstheUnitedStatesoftheirrightsunderthelaw
thedepartmenttodayissuedthefollowingstatement:
"ThroughDemocraticandRepublicanadministrations,theDepartmentofLaborconsistentlyhasheldthatthe
country'sminimumwageandovertimelawprotectsworkersregardlessoftheirimmigrationstatus.Toargue
otherwisediminishesthevalueofworkinthiscountry.
"Thispositionprovidestwoveryimportantprotections.First,itensuresthatU.S.workershavealevelplaying
fieldwhenseekingemployment.ConsiderthelostadvantagetoU.S.workerswhenunscrupulousemployers
purposelypassthemovertohireworkerswhoareafraidtofileacomplaintaboutnotbeingpaidtheminimum
wageoroftennotbeingpaidatall.
"Second,noemployershouldgainaneconomicedgebyhiringundocumentedindividualswhofeelthatthey
mustacceptworkingconditionsbelowthoserequiredbylaw.Goodemployers,whoabidebythelaw,shouldnot
suffertheconsequencesofthosebusinessesengagedinaracetothebottom."
Formoreinformationonthe"WeCanHelp"campaign,visithttp://www.dol.gov/wecanhelp.
http://www.dol.gov/opa/media/press/whd/WHD20100890.htm#.UIBV3Wc8r2Q
65
1/1
8/28/2015
Case: 15-15211,U.S.DepartmentofLaborWageandHourDivision(WHD)FactSheet
08/31/2015, ID: 9666315, DktEntry: 60, Page 79 of 106
UnitedStatesDepartmentofLabor
WageandHourDivision
WageandHourDivision(WHD)
(RevisedJuly2008)(PDF)
FactSheet#48:ApplicationofU.S.LaborLawstoImmigrantWorkers:Effectof
HoffmanPlasticsdecisiononlawsenforcedbytheWageandHourDivision
OnMarch27,2002,theU.S.SupremeCourtruledinHoffmanPlasticCompounds,Inc.v.NLRB,No.00
1595(S.Ct.),thattheNationalLaborRelationsBoard(NLRB)lackedauthoritytoorderbackpaytoan
undocumentedworkerwhowaslaidofffromhisjobbecauseofunionactivities.
InHoffmanPlastics,theSupremeCourtdecidedthatprovidingbackpaytotheundocumentedworkerwould
conflictwithpoliciesunderU.S.immigrationlaws.Thoselawsrequireemployeestopresentdocuments
establishingtheiridentityandauthorizationtoworkatthetimetheyarehired.Anemployermustcheckthose
documentsandcannotknowinglyhiresomeonewhoisnotauthorizedtowork.InHoffmanPlastics,the
employeepresentedfalsedocumentationwhenhewashired.Hewaslaterlaidofffortryingtoorganizeaunion,
inviolationoftheNationalLaborRelationsAct(NLRA).TheNLRBsoughtbackpayforaperiodoftimeafterthe
layoff.TheSupremeCourtconcludedthatbackpayshouldnotbeawarded"foryearsofworknotperformed,for
wagesthatcouldnotlawfullyhavebeenearned,andforajobobtainedinthefirstinstancebyacriminalfraud."
TheSupremeCourt'sdecisiondoesnotmeanthatundocumentedworkersdonothaverightsunderotherU.S.
laborlaws.InHoffmanPlastics,theSupremeCourtinterpretedonlyonelaw,theNLRA.TheDepartmentof
Labordoesnotenforcethatlaw.TheSupremeCourtdidnotaddresslawstheDepartmentofLaborenforces,
suchastheFairLaborStandardsAct(FLSA)andtheMigrantandSeasonalAgriculturalWorkerProtectionAct
(MSPA),thatprovidecorelaborprotectionsforvulnerableworkers.TheFLSArequiresemployerstopaycovered
employeesaminimumwageand,ingeneral,timeandahalfanemployee'sregularrateofpayforovertime
hours.TheMSPArequiresemployersandfarmlaborcontractorstopaythewagesowedtomigrantorseasonal
agriculturalworkerswhenthepaymentsaredue.
TheDepartment'sWageandHourDivisionwillcontinuetoenforcetheFLSAandMSPAwithoutregardto
whetheranemployeeisdocumentedorundocumented.Enforcementoftheselawsisdistinguishablefrom
orderingbackpayundertheNLRA.InHoffmanPlastics,theNLRBsoughtbackpayfortimeanemployee
wouldhaveworkedifhehadnotbeenillegallydischarged,underalawthatpermittedbutdidnotrequireback
payasaremedy.UndertheFLSAorMSPA,theDepartment(oranemployee)seeksbackpayforhoursan
employeehasactuallyworked,underlawsthatrequirepaymentforsuchwork.TheSupremeCourt'sconcern
withawardingbackpay"foryearsofworknotperformed,forwagesthatcouldnotlawfullyhavebeenearned,"
doesnotapplytoworkactuallyperformed.Twofederalcourtsalreadyhaveadoptedthisapproach.SeeFlores
v.Albertson's,Inc.,2002WL1163623(C.D.Cal.2002)Liuv.DonnaKaranInternational,Inc.,2002WL
1300260(S.D.N.Y.2002).
TheDepartmentofLaborisstillconsideringtheeffectofHoffmanPlasticsonotherlaborlawsitenforces,
includingthoselawsprohibitingretaliationforengaginginprotectedconduct.
WheretoObtainAdditionalInformation
Foradditionalinformation,visitourWageandHourDivisionWebsite:
http://www.wagehour.dol.govand/orcallourtollfreeinformationandhelpline,available8a.m.
to5p.m.inyourtimezone,18664USWAGE(18664879243).InformationabouttheFLSAand
http://www.dol.gov/whd/regs/compliance/whdfs48.htm
66
1/2
8/28/2015
Case: 15-15211,U.S.DepartmentofLaborWageandHourDivision(WHD)FactSheet
08/31/2015, ID: 9666315, DktEntry: 60, Page 80 of 106
MSPAisalsoavailableontheInternet.
Thispublicationisforgeneralinformationandisnottobeconsideredinthesamelightasofficialstatementsof
positioncontainedintheregulations.
http://www.dol.gov/whd/regs/compliance/whdfs48.htm
67
2/2
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 100 of 106
87
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 101 of 106
88
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 102 of 106
89
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 103 of 106
90
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 104 of 106
91
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 105 of 106
92
Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 106 of 106
/s Joshua T. Stehlik
Joshua T. Stehlik
93