Dozens of highly publicized workplace raids on companies employing undocumented workers have underscored the risk of ignoring federal immigration laws. But if an employer unknowingly hires undocumented workers, do those workers have the same rights as legal workers to engage in union activity? And if an employer subsequently discovers the workers are here illegally, must he or she still honor those rights?
A New York meat products wholesaler found out the hard way that the answer is yes. As a result, employers will have to live with what one judge described as a "peculiar" rights-of-employees ruling by the District of Columbia Circuit--at least until the Supreme Court or Congress decides to clear the air.
"The analysis followed by the court in this case is not completely crazy, but I think it's wrong," says Jeffrey Braff, member in Cozen O'Connor's Philadelphia office.
"That statute says it is unlawful to employ illegal immigrant workers," Braff says. "So you would think that should eliminate [illegal aliens] being employees [with the same rights as legal workers]."
In her opinion in Agri Processor, Judge Karen LeCraft Henderson noted that in the Sure-Tan decision, the Supreme Court relied on the absence of any provision in the Immigration and Naturalization Act making it a separate criminal offense for an alien to accept employment after entering this country illegally. Shortly after that decision came down, however, Congress enacted the IRCA, banning illegal immigrants from accepting employment.