The Sixth Circuit’s Beneficial Treatment of Hoffman Plastic Compounds v. NLRB

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Mallory Perazzo, Associate Member, University of Cincinnati College of Law

I. Introduction

Americans rely substantially on immigrants’ contribution to the United States workforce.  One in six workers in the United States is an immigrant.[1]  These workers tend to work at disproportionately high rates in essential, critical infrastructure jobs compared to their U.S.-born counterparts.[2]  Immigrants are working, often at risk to their own health and safety, to keep Americans safe, healthy, comfortable, and fed.[3] 

Although the work that immigrants do is vital, employers and lawmakers do not always value it as such.  Foreign-born workers face increased risk of harassment, injuries, wage violations, and other abuses.[4]  Nevertheless, they report these abuses less frequently, in part due to fear of illegal but powerful workplace retaliation.[5]  The stakes of losing a job for an immigrant may be higher than for a U.S. citizen because of gaps in protection to undocumented workers.  Although undocumented immigrants are generally treated as covered employees, there are exceptions.[6]  One such exception stems from the Supreme Court case Hoffman Plastic Compounds v. NLRB (“Hoffman”), which prevented an undocumented immigrant from receiving backpay after suffering workplace retaliation.[7]  Unfortunately, this type of policy leads to silence about misconduct in the workplace, which results in worse conditions for all employees. 

This article urges that, unless the Supreme Court overturns its decision in Hoffman, lower courts should follow the Sixth Circuit’s recent interpretation of Hoffman in Torres v. Precision Industries (“Torres”).[8]  Part II discusses the Supreme Court case as well as lower-court interpretations of it.  Part III explains the merits of the decision in Torres from a precedential and policy perspective.

II. Background

In a highly influential but sometimes confusing case regarding the intersection of immigration and employment law, the Supreme Court weighed two competing federal statutes.  In Hoffman, an immigrant presented false work authorization to his employer in violation of the Immigration Reform and Control Act of 1986 (“IRCA”).[9]  The employer violated a different statute—the National Labor Relations Act (“NLRA”)—by retaliating against the worker for supporting a union-organizing campaign.[10]  The Court held that the National Labor Relations Board (“NLRB”) was precluded from awarding the employee backpay for his retaliation claim because it would frustrate the purpose of the policies underlying the IRCA, including disincentivizing undocumented immigrants to work in the United States and employers to hire them.[11]

Lower courts’ interpretations of the decision in Hoffman have varied in how far the logic extends.  Some jurisdictions have held that under Hoffman an immigrant’s inability to prove authorized employment statute precludes lost wages entirely.[12]  For example, in Veliz v. Rental Serv. Corp. USA, Inc., a Florida district court held that, under Hoffman, awarding lost U.S. wages to an undocumented immigrant would necessarily violate the IRCA.[13]  There, the court acknowledged that even though Hoffman would permit Florida law to extend workers’ compensation to people working unlawfully, it does not allow any award of lost wages or backpay.[14]  Other courts permit recovery if the immigrant can prove she has taken steps to become authorized to work.[15]  Still others limit recovery to what a claimant could lawfully earn outside the United States. [16] 

In 2021, the Sixth Circuit handed down a decision in Torres, which interpreted Hoffman and affected the remedies available to mistreated undocumented workers.[17]  Torres was not legally authorized to work in the U.S. during a portion of the time that he was employed by Precision, but he later obtained work authorization.[18]  After being terminated, Torres sued Precision, arguing that he was unlawfully retaliated against for filing a workers’ compensation claim.[19]  The Sixth Circuit considered whether federal law, which makes it illegal to employ undocumented immigrants, preempts state law, such as the Tennessee law that Torres sued under that protects workers from mistreatment such as retaliation in the workplace.[20]  The court held that in this particular instance, federal law did not preempt state law, and an immigrant is entitled to wages that he lawfully earned.[21]  Federal immigration law does not preempt punitive or emotional distress damages awarded to undocumented workers under state laws.[22]  By contrast, the court also held that federal immigration law does preclude backpay awards to workers for any period they lacked work authorization under Hoffman.[23] 

III. Discussion

Hoffman is a problematic case which should be overturned, but the Supreme Court has yet to do so in the past twenty years.  Unless the Court diverges from that decision, lower courts should read the case narrowly.  Although Torres is not the narrowest possible interpretation of Hoffman, it provides workers in the Sixth Circuit the legal right to assert their workplace rights under state law irrespective of their immigration status.  One amicus brief argued that Hoffman should not apply to Torres because Hoffman contemplated two federal statutes, while the issue in Torres related to a federal and state statute.[24]  Nevertheless, the Sixth Circuit centered its conflict analysis around Hoffman, and still concluded that an undocumented immigrant may be entitled to backpay of lawfully earned wages as well as punitive damages.[25]  Courts that interpret Hoffman more broadly than the Sixth Circuit, such as the Florida district court in Veliz, should reconsider for precedential as well as policy concerns.

States have broad authority to regulate employment and protect workers, including laws which affect occupational health, safety, and workers’ comp.[26]  To protect all workers, the state needs to hold employers accountable, including prohibiting wage theft and retaliation, because rights require remedies in order to be effective. [27]   If employers are not required to pay backpay or punitive damages to immigrants, employers will be incentivized to hire immigrant workers with the knowledge that employers can evade punishment for discrimination, such as terminating employment for filing a worker’s comp claim.  This could lead to a more dangerous workplace by silencing immigrant workers who cannot afford to lose their jobs without protection from the law.

Furthermore, workers deserve protections, and employers should be required to treat workers fairly.  Employers should not be excused from liability for violating wage laws simply because they hire immigrant workers.  Moreover, the law should value immigrant workers because the nation needs them.  Foreign nationals often work in dangerous jobs and fill in the gaps of American workers.   Immigrants contribute greatly to the U.S. economy.[28]  Depriving immigrant workers of employment and wage rights is unjust and unwise. 

IV. Conclusion

At a minimum, Hoffman should not extend beyond the contemporarily unauthorized worker’s claim to backpay.  The Sixth Circuit was correct to conclude that a worker that has gained authorization to work may receive backpay and punitive damages.  Working conditions improve for all workers regardless of immigration status when employers have the responsibility to treat workers lawfully. Moreover, all workers deserve fair treatment, and employers should be held liable when they fail to treat their employees lawfully. 

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[1] Immigrants in the United States Fact Sheet, American Immigration Council (Aug. 6, 2020), https://perma.cc/T3T2-QJBV.

[2] Donald Kerwin, Mike Nicholson, Daniela Alulema, and Robert Warren, US Foreign-Born Essential Workers by Status and State, and the Global Pandemic, Ctr. for Migration Stud. 1 (May 1, 2020). 

[3] Id.

[4] Brief for the Tennessee Immigrant and Refugee Rights Coalition (TIRRC), et al. as Amicus Curiae, p.50, Torres v. Precision Industries, Inc. 995 F.3d 485 (6th Cir. 2021). 

[5] Id.

[6] Employment Rights of Undocumented Workers, Legal Aid at Work (2022), https://legalaidatwork.org/factsheet/undocumented-workers-employment-rights/.

[7] Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). 

[8] Torres v. Precision Industries, Inc. 995 F.3d 485 (6th Cir. 2021). 

[9] Hoffman, 535 U.S. at 141.

[10] Id.

[11] Id. at 149. 

[12] Veliz v. Rental Serv. Corp. USA, Inc., 313 F. Supp. 2d 1317 (M.D. Fla. 2003).

[13] Id. at 1336.

[14] Id. at 1332.

[15] 2 Damages in Tort Actions §10.04 (2021).

[16] Id.

[17] Torres, 995 F.3d. 485.

[18] Id. at 488.

[19] Id.

[20] Id.

[21] Id. at 489.

[22] Id. at 490.

[23] Id.

[24] TIRRC Amicus Curiae, supra note 4, at 11.

[25] Torres, 995 F.3d. at 492.

[26] Id. at 32.

[27] Marbury v. Madison, 5 U.S. 137, 163 (1803).

[28] Arloc Sherman, Danilo Trisi, Chad Stone, Shelby Gonzales, & Sharon Parrott, Immigrants Contribute Greatly to U.S. Economy, Despite Administration’s “Public Charge” Rule Rationale, Ctr. on Budget and Policy Priorities (Aug. 15, 2019).