Posted 5:22 p.m. April 3

by Mira Katz
U-WIRE (DC BUREAU)

(U-WIRE) WASHINGTON – Illegal immigrants do not have a right to compensation when they are illegally terminated from their jobs, the Supreme Court ruled 5-4 last week.

In 1998 Samuel Perez assumed another man’s identity to get a job at Hoffman Plastic Compound in California. The company fired Perez and other employees for supporting formation of a union, but the National Labor Relations Board ruled it an illegal termination and awarded back pay to all laid off employees.

Perez was not rehired or paid compensation for missed time after the company found out he was an illegal alien. The High Court backed the decision.

The question before the High Court was if an illegal immigrant is unjustly fired from his or her job, is he or she entitled to receive back pay from the NLRB under the National Labor Relations Act?

“In a back-pay hearing on June 14, 1993, we found that Perez was an illegal immigrant,” Hoffman Plastic Compound Inc. attorney Ryan McCortney said.

Employment law states if fired, an individual must seek employment elsewhere in order to win back pay in the future.

“Our position is that (Perez) is not entitled to any back pay because he could not mitigate his damages by seeking employment elsewhere because he was not legally authorized to work in the U.S.,” McCortney said.

The NLRB agreed Perez should not be re-hired but believes he should receive the back pay from unlawful termination. Hoffman cited a 1984 Washington, D.C., Court of Appeals opinion in Sure-Tan Inc. v. NLRB, which excluded illegal alien workers from back-pay compensation.

A court of appeals rejected Hoffman’s argument last year and confirmed the NLRB’s ruling, stating Hoffman had taken a sentence from the Sure-Tan case out of context. The sentence reads: “In computing back pay, the employees must be deemed ‘unavailable’ for work (and the accrual of back pay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States.”

The court ruled the sentence was irrelevant to Perez’s case because it was created to guarantee that people who enter the country illegally to find work would not re-enter illegally to attain back pay. The Supreme Court agreed.

The ruling could have implications for future cases.

“The Supreme Court refers to the employment relationship in the Hoffman decision as an illegal one, which may open the door to argue that other forms of relief or whole claims should be barred in other types of cases involving illegal aliens,” McCourtney said. “For example, in his questioning of the government’s attorney at the oral argument, Justice Antonin Scalia suggested that an illegal alien may not be able to bring a breach of contract claim because the employment relationship is illegal, and courts should not enforce contracts that have an illegal object or purpose.”

McCourtney said courts must look at whether laws include illegal aliens in their definition of “employees” in order to decide claims of discrimination, harassment or retaliation in the workplace.

Chief Justice William Rehnquist wrote the majority opinion in Hoffman Plastic Compound Inc. v. NLRB.

The dissent, written by Justice Stephen Breyer, was joined in by Justices John Paul Stevens, David Souter and Ruth Bader Ginsburg and warned against a lack of restrictions on employers.