Employers across the nation are testing the limits of a recent Supreme Court decision to deny back pay to an undocumented worker, seeking to use the ruling to avoid minimum wage and workers' compensation awards, even asking for the documents of a worker who complained of sexual harassment, according to advocates for low-wage workers.
The swift employer response, along with widespread misunderstanding of the court's intent, has heightened a sense of distress building in immigrant communities through months of recession and the war on terrorism, the advocates said.
"Everyone is reeling from this," said Della Bahan, a Pasadena attorney representing immigrant janitors in a class-action lawsuit alleging wage and hour violations. "It's created a lot of confusion and a lot of fear. However it's ultimately interpreted, the overall message is, 'You complain at your peril.'"
On March 27, the high court ruled 5 to 4 that because he was undocumented, a worker at a chemical plant in Paramount could not collect thousands of dollars in back pay after he was illegally fired for union-organizing activities. The court determined that the worker's violation of immigration law overrode the employer's violation of labor laws.
In the written decision and during oral arguments, the majority made clear they did not intend to abolish all workplace rights for illegal immigrants. However, dissenters on the court, along with labor unions, immigrant-rights groups and a coalition of business groups that filed briefs on behalf of the worker, argued that such a ruling would increase exploitation by unscrupulous employers.
Some say that already has happened.
"It's amazing, the quickness of the employer response to this," said Ana Avendano Denier, an attorney with the United Food and Commercial Workers Union, which represents thousands of immigrant workers in meat and poultry plants. "Some are intentionally reading it too broadly, but there's also a lot of misunderstanding about what the court said."
In recent weeks, she said, a worker filing a sexual harassment complaint at a Kentucky poultry plant was allegedly asked for her immigration documents, as was a meatpacking worker in Nebraska who filed a workers' compensation claim after a 30-foot fall. Because both cases are being handled through the union grievance process, Denier said she could not supply the names of the employers.
In New York, the owner of a Manhattan meat market who is accused of paying his immigrant work force less than the minimum wage warned an advocacy group not to demonstrate in front of his store.
"I am sure you are aware of the ruling by the Supreme Court of the United States that illegal immigrants do not have the same rights as U.S. citizens," the owner's attorney, Frederick Margolin, told the group in a letter.
In an interview last week, Margolin said he believed that a worker fired from the market was not entitled to the difference between his wages over five years and the minimum wage because "that's back pay." He added that the employer probably knew the worker was undocumented because "that's true of maybe 75% of the employees in the area."
A Los Angeles jewelry manufacturer questioned an employee about her immigration status during a workers' compensation hearing this month and fired her after learning she was undocumented, according to a union representative at the hearing.
Felipe Aguirre, a local organizer for the International Union of Electricians-Communication Workers of America, said the employer, Quadrtech Manufacturing, also cited the Supreme Court's ruling when it canceled a proposed out-of-court settlement with employees who were fired during a union-organizing campaign.
A Quadrtech attorney did not return calls seeking comment.
It probably will be years before the ruling is fully interpreted by lower courts, attorneys said, although judges in state and federal court--both in California--already have taken a narrow view of the decision.
In Los Angeles, a U.S. District Court judge decided the immigrant status of supermarket janitors was not relevant in a class-action suit that seeks to collect minimum wages for years of work. And a San Diego Superior Court judge decided a taco stand worker who was paid $2 an hour for seven years was entitled to $32,000 for missing minimum wage. In both cases, employers had unsuccessfully cited the Supreme Court decision.
In the meantime, federal and state agencies are struggling to understand how the decision affects their ability to protect undocumented workers, if at all.