Supreme Court Takes Pass on NLRB Undocumented Workers Case

4united_states_supreme_court_112904 The United States Supreme Court decided yesterday to deny certiorari in an NLRB case concerning whether undocumented workers are considered employees under Section 2(3) of the NLRA. Both the NLRB and the D.C. Circuit found that they were in Agriprocessors v. NLRB. The issue about the status of the undocumented workers became important because the company refused to bargain with the union once it won the election because seventeen out of twenty-one employees were challenged as being in the United States illegally.

Agriprocessors, a company that specializes in the production of kosher meats, has also been in the news lately after the company was raided by the government based on the employment of a large number of undocumented workers and after its top officials were arrested for lying about its workers’ citizenship status.

This is an interesting case because it can be contrasted with the view that the Supreme Court took in the case of Hoffman Plastics, in which the Court held that undocumented workers who were illegally fired under the NLRA could not seek backpay.

Like everything else in this area of the overlap of immigration law and labor law, it is unlikely this is the last we have heard about this issue.

Cross posted at Workplace Prof Blog.

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More Commentary on the Grand Irony of ERISA

Erisa Thanks to Ian Millhiser (National Senior Citizens Law Center) who wrote this piece about the inequities of employee benefits law under ERISA with his colleague Simon Lazarus for the U.K. Guardian.

Here’s a taste:

Erisa sets strict standards to ensure that employers and insurers administering group benefit plans act “solely in the interests of beneficiaries for the exclusive purpose of providing benefits,” not their own bottom-line. But the court has rendered these protections meaningless. In a Catch-22 decision written by Justice Scalia, a 5-4 majority held that, when plan administrators violate their obligations under the law, victims may not recover any monetary compensation for resulting losses they suffer. Adding insult to injury, the court has read Erisa as a warrant for “pre-empting” – ie abolishing – pre-existing state law protections, leaving victims with literally no recourse. Thus, in the words of, the late Justice Byron White, the supreme court has achieved the “perverse anomaly of leaving those Congress set out to protect with less protection than they enjoyed before Erisa was enacted.”

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Laboratories of Democracy at the Local Level

Matt Parlow has a thought-provoking new article in print: Progressive Policy-Making on the Local Level: Rethinking Traditional Notions of Federalism, 17 Temp. Pol. & Civ. Rts. L. Rev. 371 (2008).  (A draft can be downloaded here.)  Matt contends that the oft-quoted argument of Justice Brandeis (pictured to the left) that states may appropriately serve as laboraties for “novel social and economic experiments” applies equally well — indeed, perhaps even better — to cities and other local units of government.  Citing recent immigration initiatives and living wage ordinances (including one in Madison, Wisconsin), Matt notes a long history of local-level policy innovation in this country.  He argues,

Because they are smaller in size, local governments are more capable of being responsive to the needs of their respective communities because they are more in touch with their constituents.  This leads, in theory, to more responsive and representative policy-making as local government officials make decisions informed by the community’s wants and needs.

In light of these considerations, Matt argues against the tendency of some courts to squelch local initiatives through narrow constructions of home rule powers and liberal invocations of the implied preemption doctrine.

All of this connects nicely to the recent, lively discussion on this Blog of Milwaukee’s ballot initiative mandating paid sick leave for employees.  I take it that Matt would be skeptical of arguments that the Milwaukee law is preempted by state and federal law — at the least, his analysis would suggest some good reasons why a court ought to be slow to find preemption. 

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