Effect given to the recommendations of the committee and the Governing Body - Report No 362, November 2011

Case No 2227 (United States of America) - Complaint date: 18-OCT-02 - Closed

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

1. 49. The Committee last examined this case – which concerns the inadequacy of the remedial measures in cases of illegal dismissals of undocumented workers – at its March 2010 meeting [see 356th Report, paras 61–66]. On that occasion, the Committee requested the Government to continue to keep it informed of innovative steps taken to ensure that undocumented workers are sufficiently protected against acts of anti-union discrimination and to provide information on the steps taken to consult the social partners concerned on further possible solutions aimed at ensuring effective protection for undocumented workers.
2. 50. In a communication dated 16 March 2011, the Government indicates that a review of recent case law continues to indicate a narrow application of Hoffman. In Majestic Restaurant and Buffet (2009), an NRLB Administrative Law Judge found that Hoffman does not apply where an employee without work authorization did not violate the Immigration Reform and Control Act (IRCA) and where the employer did violate the IRCA in a case where the employees did not submit fraudulent immigration documents to the employer and the employer knowingly employed or continued to employ the employees despite their immigration status.
3. 51. The Government further indicates that the Department of Labor has in place an Alliance Program whereby the department partners with unions, consulates, trade or professional organizations, businesses, faith and community-based organizations and educational institutions to enhance protection for workers, including by providing education, guidance and assistance on labor issues and promoting awareness of labor rights and responsibilities of workers and employers.
4. 52. The Committee takes due note of the above information provided by the Government but observes once again that, as a result of the Hoffman decision, the remedies available in cases of anti-union dismissals of undocumented workers still do not enable the sanctioning of such acts, nor the possibility of adequate compensation taking into account both the damage incurred and the need to prevent the repetition of such situations in the future. The Committee expects that the Government will take all necessary steps so that undocumented workers are sufficiently protected against acts of anti-union discrimination.