Undocumented Workers Have a Legal Right to Unionize

Undocumented workers, who make up a large portion of restaurant workers in NYC, face particularly acute exploitation by bosses, who often use their immigration status as a weapon. This could mean paying them lower wages than their coworkers or intimidating them when they seek better working conditions. But being undocumented does not mean that you are without legal rights. Even though the bosses would like us to believe otherwise, undocumented workers are protected by the National Labor Relations Act of 1935, the Fair Labor Standards Act of 1938, and other federal and state laws. We must make use of these rights and not let intimidation by the bosses prevent us from organizing towards a better future for all restaurant workers.

Intimidation from the bosses can often be so severe that it serves as a barrier to organizing, which is exactly what the owners want. The terror ICE has enacted on undocumented workers, often with the cooperation of the bosses, cannot be understated. It is no surprise that undocumented workers might be fearful of organizing when they face the constant threat of deportation. This is why it is absolutely vital for all workers to understand their rights and protections.

Section 7 of the National Labor Relations Act (NLRA) states:

“Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”

The courts have consistently interpreted the legal category of “employee” to include undocumented workers – those rulings have set an important precedent in our favor.

Section 8 of the NLRA lists various ways in which the employers are prohibited from interfering with the exercise of the rights stated in Section 7, the most important being:

• Section 8(a)(1). It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.

• Section 8(a)(3). It shall be an unfair labor practice for an employer to discriminate in regard to hire or tenure of employment or any term or condition of employment for the purpose of discouraging membership in a labor organization.

• Section 8(a)(5). It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of its employees.

Any worker, documented or undocumented, who believes their Section 7 rights have been violated can file a charge with the NLRB within six months of the violation. The right of all employees – including undocumented workers – to organize and join unions is protected. It is illegal for the bosses to retaliate against them for doing so. According to the NLRB, employers cannot threaten to call ICE because an undocumented worker tries to join a union. They also cannot ask for new immigration papers if an undocumented worker is caught talking with coworkers about working conditions. Whenever it is alleged that a worker has been discriminated against for engaging in unionizing activity, their immigration status is irrelevant to the question of the employer’s liability under the NLRA. Attorneys for the General Counsel of the NLRB would object to questions concerning the alleged immigration status of a worker who filed an unfair labor practice charge during the merits stage of an unfair labor practice proceeding (including the trial).

This is not to say that undocumented workers are always treated fairly, or that workers can always rely on the courts to protect us. One particularly devastating blow to undocumented workers was the case of Hoffman Plastic Compounds v. NLRB, which we discussed in a previous article[1]. The Supreme Court ruled that an undocumented worker, Jose Castro, was fired illegally, but that he was not entitled to backpay and ineligible for rehire. This case has created a climate where undocumented workers are more fearful of speaking up or organizing. It also sent a message to owners that they can retaliate against their employees without repercussions.

In the case of Mezonos Maven Bakery, a group of seven undocumented workers complained about disrespectful treatment from a supervisor. Although this concerted activity is protected under the NLRA, the owners illegally fired the workers. The owners were relying on the results of the Hoffman decision to protect them, but in this case the owners of Mezonos had never asked the workers for immigration papers – so the judge held that the concerns in the Hoffman case did not apply. The judge ordered that the workers in this case be rehired to their former or equivalent positions. They also ordered that the bakery post a notice in the shop informing workers of their legal right to form or join a union. This case shows that the Hoffman decision only applies if owners can prove that the workers are not authorized to work. Still, undocumented workers are often put in this kind of precarious position, at the mercy of the courts who may interpret the law differently each time.

Ultimately, the best weapon against retaliation by the bosses is not the law or the courts, but the force of the organized working class. The united action of workers is the best weapon available for lessening the risks for undocumented workers seeking to unionize. And once a legally-recognized union has been established, undocumented workers – like all other workers – will be far more secure than they would be as isolated individuals.

Being a member of a union means that you have legal experts on your side. Our union will have access to lawyers with a full understanding of labor and immigration law. This will ensure that we always act in the safest possible manner regarding the security of our undocumented coworkers as we struggle to conquer new ground against the bosses.

The struggle of undocumented workers is the struggle of all workers. Our union will fight for the end of cooperation with ICE, the overturn of the Immigration Reform and Control Act, and any other legislation that harms undocumented workers.