Effect given to the recommendations of the committee and the Governing Body - Report No 335, November 2004

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. 82. The Committee last examined this case at its meeting in November 2003 when it invited the Government to explore all possible solutions, in full consultation with the social partners concerned, with the aim of ensuring effective protection for all workers against acts of anti-union discrimination in the wake of the Hoffman decision and to keep the Committee informed of the measures taken in this regard [see 332nd Report, paras. 551-613].
2. 83. In a communication dated 27 May 2004, the Government provided information concerning further endorsements and clarifications by the National Labour Relations Board (NLRB) in respect of the impact of the Hoffman decision on unfair labour practices complaints. In particular, the NLRB has endorsed its general counsel’s view that, although Hoffman precludes an award of back pay to undocumented workers for work that was not performed, it does not preclude a remedial award of back pay for work that was performed but at improper wages. The NLRB also reaffirmed its prior practice of generally confining issues regarding an individual’s immigration status to the compliance phase of its proceedings, indicating that the status of a complainant, in most cases, is irrelevant to a respondent’s unfair labour practice liability under the NLRB. Finally, the NLRB addressed its “conditional reinstatement” remedy, a pre-Hoffman remedy, directing the reinstatement of an undocumented worker on condition that he or she produce proof of eligibility to work within a “reasonable time”, if the employer knew when it hired the “discriminatee” that he or she was undocumented. Although the NLRB acknowledged that determining the propriety of such a remedy should be left for the compliance phase, it suggested that the remedy remains appropriate.
3. 84. The Government further reiterates that the Hoffman decision has not affected the enforcement of other laws governing the employment relationship (except where there are issues of back pay for work not performed) and that federal and state case law continue to interpret the Hoffman decision narrowly. In addition, the Government indicates that, pursuant to the United States-Mexico Joint Ministerial Statement on this matter in April 2002, consultations have identified issues for collaboration based on the resolve of both Governments to enforce applicable labour laws for all workers, including immigrant workers, and have resulted in United States Department of Labor initiatives to inform migrant workers about applicable labour protections under United States laws.
4. 85. In conclusion, the Government states that the case law since the Hoffman decision has confirmed that the decision is not wide ranging in that it only affects the remedy of back pay for work not performed. The Government reiterates that discrimination against undocumented workers for union activity remains illegal and emphasizes that it continues to take steps to alleviate concerns that the decision will be applied beyond its intended scope.
5. 86. In a communication dated 8 October 2004, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) provided follow-up information in respect of this case. In particular, the AFL-CIO alleges that employment law in the wake of Hoffmann remains in flux and immigrant workers’ rights remain highly at risk. The AFL-CIO gives a number of examples, including various state judicial rulings, to support its statement. Finally, the AFL-CIO states that the Government has not amended the relevant statute, the Immigration Reform and Control Act, nor has it consulted with the social partners on ways to bring the legislation into conformity with freedom of association principles, as had been recommended by the Committee.
6. 87. The Committee takes due note of the information provided by the Government. It further notes the comments made by the complainant organization and requests 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 are inadequate to ensure effective protection against acts of anti-union discrimination, the Committee regrets that the Government has 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 requests the Government to keep it informed of any measures taken or envisaged in this respect.