09/08/2011 11:36 am ET | Updated Nov 08, 2011

AFL-CIO Goes To Bat For Undocumented Workers

WASHINGTON -- The country’s largest trade union came out in defense of undocumented workers on Thursday, criticizing a recent ruling by the federal labor board that makes it harder for such workers to recover backpay they’re owed by employers.

The National Labor Relations Board (NLRB) ruled last month that it cannot award backpay to an undocumented worker whose rights were violated, even if it’s proven that the employer knowingly broke the law by hiring the worker. In its decision, the board implied that it regretted issuing the decision but had no choice but to do so, given precedent set by a previous Supreme Court ruling on the matter.

But Ana Avendano, director of the AFL-CIO’s immigration program, said such a ruling did not need to be made -- and that it amounts to “an invitation to exploit” workers. The trade union has filed a brief urging the board to reconsider the case.

“The message the [labor] board is sending to employers of immigrant workers is that you get to violate the immigration law and the labor law,” Avendano said.

Avendano also claimed that the ruling gives unscrupulous employers an advantage over their more above-board competitors.

“It’s really undermining legitimate employers who are trying to abide by the law,” she said. “They will have a harder time competing with operators who don’t comply with immigration law and get a free bite at the apple by not paying workers.”

“We have to let the decision speak for the Board,” said NLRB spokeswoman Nancy Cleeland. “The decision spells out their thinking in why they couldn’t rule any other way.” Cleeland said the board recognized that "a vital check on workplace abuses is removed" by the decision.

In the 2002 Supreme Court case known as Hoffman Plastics, the court ruled that an undocumented worker was not entitled to backpay even though he had been illegally fired.

Michael Eastman, executive director of labor law policy at the U.S. Chamber of Commerce, said the ruling did not come as a surprise. “Given what the Supreme Court said, this result was inevitable,” he said.

The AFL-CIO’s criticism indicates that labor leaders aren’t thrilled with every single decision coming out of the federal labor board, even though the agency has infuriated business groups in recent months with a string of rulings widely seen as pro-union.

The criticism also suggests the importance of the immigrant workforce to the American labor movement and its future. Despite the political divisiveness of the immigration issue, some labor leaders have come to view undocumented workers as the workers most in need of collective bargaining to negotiate over pay and working conditions.

If unions are hoping to someday replenish their ranks with workers who are currently undocumented, the recent board ruling does little to help their cause. The ruling concedes that undocumented workers don’t exactly enjoy all of the same protections that documented ones do -- a message that the AFL-CIO worries could discourage some workers from taking the risky of step of trying to organize.

In the case before the labor board, undocumented workers at a Brooklyn bakery were fired after complaining about their treatment by a supervisor. The workers had been at the bakery as long as eight years, and they hadn’t been asked to provide working papers at the time they were hired. The labor board originally ordered the workers to be reinstated and made whole on their wages -- an order negated by the recent ruling.

Avendano admits the ruling is a “setback.”

“A worker on the shop floor knows that if she risks her job and her family to try to organize a union, the employer can fire her and won’t have to pay anything out of pocket, even if they already violated the law,” she said. “From a worker standpoint, it has a chilling effect.”