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.

The case centers on a September 2005 vote to join the United Food and Commercial Workers International Union by the employees of Agri Processor Co. When the company refused to bargain,
the union filed an unfair labor practice charge with the National Labor Relations Board (NLRB).

Agri Processor said most of the workers who voted were undocumented aliens and therefore prohibited from unionizing since they did not qualify as “employees” protected by the National Labor Relations Act (NLRA). That rendered election results invalid, the company claimed.

The NLRB charged that Agri Processor's refusal to bargain with the workers violated the NLRA. The board said Agri Processor's contention that undocumented aliens are not “employees” protected by the NLRA ignores the act's plain language and the U.S. Supreme Court's 1984 decision in Sure-Tan Inc. v. NLRB. In January, the D.C. Circuit agreed with that ruling in Agri Processor Co. Inc. v. NLRB.

“The decision verifies employees have rights and that the courts are not going to distinguish between the type of employee regarding immigration status,” says Bob Gregg, partner at Boardman Law Firm in Madison, Wis. “If you violate the basic employment laws, you cannot immunize yourself by then later claiming, 'Oh, the person was not legally eligible to work.'”

Whether it's the NLRA or Title VII, Gregg says, “People still have a right to be treated as employees and to not be discriminated against.”

Employee Enigma
The crux of the conflict between employers' rights and illegal aliens' rights comes from the Supreme Court's deference to Congress' definition of “employee” in the NLRA.

In Sure-Tan, the court held that the definition of “employee” includes undocumented aliens: “Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of 'employee.' “

“[Sure-Tan] was in part based on the notion that the immigration laws at that time did not prohibit the employment of illegal immigrant workers,” Braff says.

The Immigration Reform and Control Act (IRCA), passed in 1986, changed that.

“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.

However the D.C. Circuit, Henderson said, will follow Sure-Tan's interpretation of “employee” until the Supreme Court rules differently or Congress changes the law.

Sidestepping Discrimination
Some experts interpret Agri Processor as validation of the principle that one law does not necessarily trump others.

“As an employer, you have to continue to treat [suspected illegal workers] as all other employees, until you find out that they are not eligible to work,” Gregg says. “You can't go out and do a witch hunt … without some sort of just cause.”

Gregg believes a ruling other than the one made by the NLRB in Agri Processor would also encourage employers during union-organizing drives to initiate investigations focused on those who might be illegal aliens.

“All relevant laws prohibit discrimination,” he says. “Any other ruling would encourage and open the floodgates for that discrimination.”

Still, Braff describes the D.C. Circuit's action as “bizarre.”

“Assuming the illegal aliens voted for the union and the legitimate workers voted against the union, now the legitimate employees are stuck with the union,” he says.

That doesn't mean employers should dismiss Agri Processor, however.

“What it says to employers is: Don't try to stretch it,” Gregg says. “The immigration act did not abrogate the rights of anybody under the labor laws.”