PROVO — Courts are increasingly interpreting employment laws in ways that leave illegal immigrants unprotected in the workplace, according to an article in the Wisconsin Law Journal by D. Carolina Nunez, an associate law professor at BYU.

She says that may give unscrupulous employers financial incentives to hire the undocumented, because mistreating them may not require paying them penalties or back pay.

"It allows employers to govern employees without legal constraint," Nunez wrote.

She said a sharp shift in interpretation of employment laws came after the 2002 U.S. Supreme Court case of Hoffman Plastic Compounds v. the National Labor Relations Board.

The case centered on an illegal immigrant who had been fired from a chemical plant job for his union-organizing efforts, an activity protected by the National Labor Relations Act. He sued to be reinstated and sought back pay for the time when he had no job, as allowed by law for most employees.

The Supreme Court, however, while recognizing that he was considered an employee under the law, refused to award him payment "for wages that could not lawfully have been earned."

Nunez wrote that after that decision, employers in trouble with the law or being sued by workers for mistreatment have used that decision "to pry into claimants' immigration status, aiming to reduce the potential remedy awarded or, at worst, hoping to intimidate undocumented workers from continuing litigation."

For example, the decision has been used as a basis to deny back pay and reinstatement in some discrimination and harassment claims after workers were fired. However, courts have held that employees must be paid for work performed before they were fired.

Also, Nunez wrote that a federal district court in Florida ruled that the estate of an illegal immigrant who was injured in a forklift accident could not recover lost U.S. wages in its claim against the forklift manufacturer and lessor.

A New Jersey court ruled that a woman improperly fired because she became pregnant could not recover lost wages because she is an illegal immigrant.

Nunez wrote that other courts have suggested that illegal immigrants may recover lost wages based only on the prevailing wage of the immigrant's home country.

Ironically, Nunez said, child labor laws allow underage children who work to receive remedies for work they could not have performed legally — but the same is not true for illegal immigrants.

Nunez wrote that denying such remedies "encourages continued hiring of undocumented workers, a practice specifically prohibited by the Immigration Reform and Control Act.

"With no remedy to enforce an ostensibly legally ensured right, employees will have little incentive to report their employers' labor-law violations," she wrote. "As a result, undocumented workers will have little option but to continue working under substandard conditions."

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She added it also may make legal workers hesitant to report violations "out of fear of being replaced by an undocumented worker."

Nunez added that the situation, if not corrected, "is likely to create a sub-caste of workers without enforceable rights."

She said that "it brings to mind Jefferson's warning 'that the friendless alien has indeed been selected as the safest subject of first experiment; but the citizen will soon follow.' "

e-mail: lee@desnews.com

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