A supreme stretch: The supremacy clause in the wake of IRCA and hoffman plastic compounds

Cornell International Law Journal

Volumn 41, Issue 1, 2008, Pages 127-138

  Griffith, Kati L ^a  

^a School of Industrial and Labor Relations

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EID: 42349104813     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (78)

1. See, e.g., Carl Hulse, Kennedy Plea Was Last Gasp for Immigration Bill, N.Y. TIMES, June 9, 2007, at A1.
2. When I refer to "undocumented workers," 1 am referring to workers that do not currently have legal authorization from the U.S. government to be physically present in the United States.
3. See Raymond Hernandez, Opinions, Far Apart, Underscore Immigration Bill's Obstacles, N.Y. TIMES, June 5, 2007, at B1.
4. For a recent and rare news editorial addressing the issue of labor standards within the immigration debate, see Lawrence Downes, Editorial, Worker Solidarity Doesn't Have to Stop at the Rio Grande, N.Y. TIMES, Sept. 30, 2007, § 4, at 11.
5. Keith Cunningham-Parmeter, Fear of Discovery: Immigrant Workers and the Fifth Amendment, 41 CORNELL INT'L L.J. 27.
6. 535 U.S. 137 (2002).
7. When I refer to labor and employment law, 1 am speaking of laws enacted by the U.S. government, the District of Columbia, or the fifty U.S. states.
8. I refer broadly to labor and employment law statutes and common law that provide some form of workplace right and remedy.
9. See H.R. REP. No. 99-682(1), at 51-56 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5655-60.
10. See generally id.
11. See, e.g., Gerald M. Boyd, Jackson Describes the Reagan Administration As 'Warmongering,' N.Y. TIMES, Apr. 26, 1984, at B8 (referring to U.S. Immigration officials' raids of workplaces); Linda Greenhouse, High Court Backs Factory Searches for Illegal Aliens, N.Y. TIMES, Apr. 18, 1984, at A1 (referring to immigration raids of two Los Angeles factories).
12. See generally H. R. REP. NO. 99-682(1), at 51-56.
13. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C).
14. See, e.g., Michael H. LeRoy & Wallace Hendricks, Should 'Agricultural Laborers' Continue to Be Excluded from the National Labor Relations Act?, 48 EMORY L.J. 489, 498 n.42 (1999) ("The IRCA permitted the granting of temporary resident status to as many as 350,000 aliens who could prove they performed agricultural services for at least 90 days between May 1, 1985 and May 1, 1986.");
15. Editorial, Give Illegal Aliens More Time, N.Y. TIMES, Apr. 24, 1988, at A24 ("The 1986 Immigration Reform and Control Act provided amnesty for the estimated 1.4 million to 2 million undocumented aliens who have been in the United States since before 1982.").
16. Immigration Reform and Control Act of 1986 § 274A(a)-(d).
17. 8 U.S.C. § 1324a(b), (e)(4)-(5), (f) (2000).
18. 8 U.S.C. § 1324a(a)(1)(A).
19. See 8 U.S.C. § 1324c (2000).
20. See 8 U.S.C. § 1324a(h)(2) ("The provisions of this section preempt any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.");
21. Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 232 (2d Cir. 2006) ("The statute is silent ... as to its preemptive effect on any other state or local laws.").
22. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 142 n.2 (2002).
23. 29 U.S.C. §§ 151-169 (2006) (regulating collective bargaining and organizing rights of covered private sector employees).
24. Hoffman Plastic Compounds, 535 U.S. at 140-41. It is important to note that Hoffman is not a case about whether undocumented workers are covered by the National Labor Relations Act. There is little doubt that undocumented workers are "employees" according to the NLRA and therefore have all of the same rights as documented workers. Instead, Hoffman concerns itself with the remedies available to undocumented workers once a court has determined that the undocumented workers have suffered an NLRA violation of their rights.
25. See id. at 142-49.
26. See, e.g., María Pabón López, The Place of the Undocumented Worker in the United States Legal System After Hoffman Plastic Compounds: An Assessment and Comparison with Argentina's Legal System, 15 IND. INT'L & COMP. L. REV. 301, 307-14 (2005).
27. See id.; Michael Wishnie, Emerging Issues for Undocumented Workers, 6 U. PA. J. LAB. & EMP. L. 497, 513-17 (2004).
28. See, e.g., Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 239 n.21 (2d Cir. 2006); Rivera v. NIBCO, Inc., 364 F.3d 1057, 1069 (9th Cir. 2004).
29. I focus on the remedy of lost future earnings, rather than the remedy of reinstatement, because the lost future earnings remedy is most relevant to the Supreme Court's Hoffman decision and more often addressed by lower courts facing a preemption analysis. The reinstatement remedy is much more likely to be preempted by the IRCA, because a court-ordered reinstatement of an undocumented worker would require an employer to violate the IRCA by knowingly hiring someone without proper identification. See Wishnie, supra note 24, at 505 (finding lost future earnings remedy to be less "troublesome" in the preemption context and stating that "courts have approved only those reinstatement orders that are conditioned on an undocumented worker securing INS work authorization within a reasonable period of time.").
30. See English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990).
31. 313 F. Supp. 2d 1317, 1336-37 (M.D. Fla. 2003).
32. Id. at 1336.
33. Id.
34. See generally id.
35. 469 F.3d 219, 249 (2d Cir. 2006). In a recent New York district court case, however, the court declined to dismiss plaintiffs lost future earnings claim even though it appeared that the plaintiff violated the IRCA.
36. See Reis v. Vannatta Realty, 515 F. Supp. 2d 441, 446 (S.D.N.Y. 2007).
37. For another very recent example, see Contreras v. KV Trucking, Inc., No. 4:04-CV-398, 2007 WL 2777518, at *5-6 (E.D. Tex. Sept. 21, 2007) ("[E]ven if the Defendants did not waive the defense, their motion would still be denied. 'Texas law does not require citizenship or the possession of immigration work authorization permits as a prerequisite to recovering damages for lost earning capacity.'") (citation omitted).
38. It is well established that when states regulate workplaces, they act according to their traditional police powers. See, e.g., DeCanas v. Bica, 424 U.S. 351, 356 (1976) ("States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State. Child labor laws, minimum and other wage laws, laws affecting occupational health and safety, and workmen's compensation laws are only a few examples.").
39. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) ("In all pre-emption cases ... we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'") (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947));
40. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
41. See Affordable Hous. Found., 469 F.3d at 231-32 ("From its initial enactment, IRCA has contained an express preemption clause, stating that '[t]he provisions of this section preempt any State or local law Imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.' 8 U.S.C. § 1324a(h)(2). The statute is silent, however, as to its preemptive effect on any other state or local laws,").
42. See H.R. REP. NO. 99-682(1), at 58 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5662.
43. It is important to note here, as mentioned above, that the state labor and employment law remedy of reinstatement is preempted to the extent that it would force employers to knowingly hire or rehire undocumented workers in violation of the IRCA. Here I am referring only to state labor and employment law remedies of lost future earnings.
44. For instance, the government brings IRCA cases against allegedly undocumented persons in immigration court but employees bring state labor and employment law cases against their employers in state court.
45. The Supreme Court has identified three main types of preemption: (1) express preemption, (2) field preemption, and (3) implied conflict preemption. See Gade v. Nat'l Solid Wastes Mgmt., 505 U.S. 88, 98 (1992). As noted above, the situation described here is not a case of express preemption because the IRCA does not contain any express language preempting state labor and employment law.
46. See supra note 35 and accompanying text. Moreover, this is not a case of field preemption because it cannot be said that the federal regulatory scheme is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it" with state labor and employment laws that provide lost future earnings remedies regardless of immigration status. See Gade, 505 U.S. at 98.
47. Geier v. Am. Honda Motor Co, 529 U.S. 861, 899 (2000) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
48. For statutory language suggesting that this is the IRCA's purpose, see 8 U.S.C. § 1324a (2000) and 8 U.S.C. § 1324c(a)(1)-(3) (2000).
49. For further support from language in the IRCA's legislative history, see Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 231 (2d Cir. 2006) (quoting, in part, legislative history, the court stated that "[c]onfronting a 'large-scale influx of undocumented aliens,' Congress concluded that 'the most humane, credible and effective way to respond' to the problem was to penalize those employers who hired illegal aliens .... 'Employment is the magnet that attracts aliens here illegally .... Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens and this, in turn, will deter aliens from entering illegally or violating their status in search of employment.'") (citations omitted).
50. See 8 U.S.C. 1324a; 8 U.S.C. 1324c(a)(1)-(3); H.R. REP. NO. 99-682(1), at 46 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5650 ("This legislation seeks to close the back door on illegal immigration so that the front door on legal immigration may remain open. The principal meaning of closing the back door, or curtailing future illegal immigration, is through employer sanctions.").
51. 496 U.S. 72, 85 (1990).
52. Id. at 89-90.
53. Id. at 75-76.
54. Id. at 77.
55. See id. at 89.
56. See id. at 90.
57. Id.
58. See, e.g., Patel v. Quality Inn S, 846 F.2d 700, 704-705 (11th Cir. 1988) ("We doubt, however, that many illegal aliens come to this country to gain the protection of our labor laws. Rather it is the hope of getting a job-at any wage-that prompts most illegal aliens to cross our borders.").
59. 471 U.S. 707 (1985).
60. See id. at 721.
61. See, e.g., Gary v. Air Group, Inc., 397 F.3d 183, 190 (3d Cir. 2005) (stating that its holding was strengthened by "the well-established principle that 'courts should not lightly infer preemption.' This is particularly apt in the employment law context which falls 'squarely within the traditional police powers of the states, and as such should not be disturbed lightly.'") (citations omitted).
62. Hillsborough, 471 U.S. at 709-10.
63. See id. at 720.
64. See id.
65. See id. at 720-23.
66. Id. at 720-21.
67. Id.
68. Id. at 721.
69. See Sprietsma v. Mercury Marine, 537 U.S. 51, 67-68 (2002);
70. Geier v. Am. Honda Motor Co., 529 U.S. 861, 886 (2000).
71. 529 U.S. at 879-81.
72. See id. at 886.
73. See id.
74. See 537 U.S. at 65-66.
75. Id. at 60-62.
76. See id. at 65.
77. See id. at 70.
78. Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 254 (2d Cir. 2006) (Walker, J., concurring).