Throughout this essay, I will discuss any claims that Maria may have and any remedy she would be entitled to if she were to win. Also I will discuss any defenses that the Hotel may have against Maria's claims.
Maria would have legitimate claims under the NLRA (specifically, Section 8(a)(3)) and Title VII of the Civil Rights Act of 1964. Possible remedies would be the reinstatement of Maria in her former position with back pay plus interest. More so, since the Supreme Court ruled in Sure-Tan Inc. v. National Labor Relations Board, 467 U. S. 883, 893 (1984), that undocumented workers are entitled to the protections and remedies under the National Labor Relations Act (NLRA).
Unfortunately, the enactment of Immigration Reform and Control Act of 1986 (IRCA) created a new employment eligibility verification system, commonly known as the “I 9 process, " to deter the employment of unauthorized workers. IRCA makes it unlawful for employers to knowingly violate the employment eligibility verification requirements and makes it a crime for an undocumented worker to use false documents to obtain employment.
Moreover, the Supreme Court decided in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137 (2002) that an undocumented worker who was unlawfully terminated for participating in union organizing activities and who had gained his employment by presenting false documents was prohibited under federal immigration law from receiving an award of back pay under the National Labor Relations Act (NLRA).
Thus, the Hotel could ask the court to dismiss the claim, and argued that Hoffman precluded illegal aliens from bringing any claims under the FLSA; NLRA, Title VII or whatever.
Fortunately, all is not lost because the NLRB, States (e. g. , New York and California) and lower courts are finding ways to hold employers accountable. For example, the defendant in Balbuena, et al. v. IDR Realty LLC, et al. , 2006 asked the court to dismiss the claim, and argued that Hoffman precluded illegal aliens from bringing any claims under the FLSA. According to National Immigration Law Center, the defendants, citing Hoffman, continued by filing a motion, arguing that federal law preempted Balbuena's state tort claims and that an award of lost wages to Balbuena would undermine national immigration policies. The court rejected this argument, and interpreted Hoffman as applying only to the “very specific" remedy of back pay for work “not performed. " Howbeit, Balbuena suffered a reversal on appeal.
Harvard Law School trained Attorney Dennise A. Calderon-Barrera put it best,
undocumented does not necessarily mean unprotected under U. S. labor laws. It does mean, however, that under certain U. S. labor and employment laws, undocumented aliens will be left without comprehensive and effective protection, to the detriment of all workers within U. S. borders and to the detriment of U. S. immigration laws and policies.
In conclusion, I discussed claims that Maria had and the remedy she would be entitled to if she were to win. Also I discussed defenses that the Hotel has against Maria's claims.
Karl A. Mitchell