Effect given to the recommendations of the committee and the Governing Body - Report No 340, March 2006

Effect given to the recommendations of the Committee and the Governing Body

1. 90. The Committee last examined this case at its meeting in November 2004 and on this occasion, the Committee took note of the comments made by the complainant organization and requested the Government to transmit its observations thereon. Recalling its conclusion that the remedial measures left to the NLRB in cases of illegal dismissals of undocumented workers were inadequate to ensure effective protection against acts of anti-union discrimination, the Committee regretted that the Government had not provided any information on measures taken to explore possible solutions, in full consultation with the social partners concerned, aimed at redressing this inadequacy. It therefore requested the Government to keep it informed of any measures taken or envisaged in this respect [see 335th Report, paras. 82-87].
2. 91. In communications dated 20 September and 2 November 2005, the Government provided information concerning a recent appellate court decision that further supports the Government’s conclusion that United States courts have continued to interpret narrowly the US Supreme Court’s decision in Hoffman. That appellate court in Majlinger v. Cassino Contracting Corporation, 2005, a case concerning recovery for lost wages that resulted from an injury to an undocumented worker, held that the trial court applied Hoffman in a way that was inconsistent with the vast majority of federal and state courts, which have consistently given Hoffman a narrow interpretation. In reversing the trial court’s decision, the appellate court concluded that Hoffman: “is not so broad as to require a ruling that a New York court’s award of lost wages to an undocumented alien is pre-empted by the Immigration Reform and Control Act (IRCA) or the policy underlying it. Furthermore, our own analysis of the pre-emption issue leaves us firmly convinced that requiring defendants to pay the same damages to all plaintiffs regardless of their immigration status not only does not interfere with, but actually advances, the immigration policy of the United States, as reflected in the applicable federal statutes”. According to the Government, this appellate decision is yet another example of the limited scope given to the Hoffman decision by US courts. Although the lower courts have addressed, and will continue to address, the Hoffman decision’s application to several different areas of law, these cases do not support the AFL-CIO’s conclusion that Hoffman puts immigrant workers’ rights “highly at risk”. Moreover, according to the Government, in the area of freedom of association, the AFL-CIO did not cite a single case that dealt directly with freedom of association issues. The Government once again stated that the Hoffman decision does not preclude undocumented workers from recovering lost wages for work already performed, and does not prevent the NLRB from enforcing the NLRA where there has been a violation involving undocumented workers. In cases where courts have relied on the decision to deny compensation, the denial of such remedies has been limited to compensation for periods where the undocumented workers would not have been legally entitled to work, and the decisions have been based on the necessary enforcement of US immigration law and have been narrowly drawn to achieve this objective. Finally, the Government stated that the United States continues to vigorously enforce the laws so as to protect all workers, including undocumented workers, from discrimination for union activities.
3. 92. Moreover, since the United States last reported on Case No. 2227, US federal agencies have continued to adhere to their post-Hoffman commitments to enforce US labour laws regardless of a worker’s immigration status. The United States agencies also continue to engage in outreach and education efforts to inform workers and employers about their rights and responsibilities under applicable statutes. A joint declaration between the Department of Labor of the United States and the Ministry of Foreign Affairs of the United Mexican States concerning workplace laws and regulations applicable to Mexican workers in the United States was signed in July 2004, as well as two Letters of Agreement.
4. 93. Similarly, the National Labor Relations Board (NLRB) continues to treat all statutory employees as protected from unfair labour practices and entitled to vote in NLRB elections, without regard to their immigration status. At the same time, the NLRB’s field offices engage in regular outreach programmes to interested individuals and groups. These programmes have included discussion of the Hoffman decision, and have provided significant consultation opportunities with the NLRB for organizations representing workers and employers, local bar associations, law schools and associations of labour relations professionals, and other interested groups.
5. 94. In addition, the US Government enforces protections for foreign workers beyond efforts to prevent anti-union discrimination. For example, the Department of Labor’s Wage and Hour Division (WHD) continues to pursue compliance with critical labour protections in low-wage industries that often employ immigrant workers and those with a history of chronic violations. In 2005, the WHD announced that it would expand these efforts to include “new economy” workers in the computer and call-centre industries.
6. 95. Finally, the Government underlines that governmental agencies provide employers’ and workers’ organizations the opportunity to participate in the administrative process of creating rules and regulations, including formulation, amendment, and repeal, through public notice and comment periods required by the Administrative Procedure Act (APA). The agencies are required by the APA to fully consider the comments of the interested organizations. Additionally, both employers’ and workers’ organizations have the opportunity to participate extensively in the legislative process by lobbying Congress concerning labour matters of interest to them. This may include testifying on legislation, submitting written proposals and comments, and meeting with legislators.
7. 96. The Committee notes the information provided by the Government, including the appellate court’s decision in Majlinger. The Committee requests the Government to indicate whether this judgement has been appealed and, if so, to keep it informed of the final judgment in this matter.
8. 97. Regarding the measures taken to explore possible solutions, in full consultation with the social partners concerned, to redress the inadequacy created by the Hoffman case, the Committee regrets that the Government merely refers to general avenues available to workers’ and employers’ organizations to participate in the administrative process of creating rules and regulations and for submitting legislative proposals and requests to keep it informed of any development in this respect, including measures taken by the various governmental agencies.