According to the Migration News , Mexican President Vicente Fox has announced he is considering asking the Inter-American Court of Human Rights to take up the issue of unauthorised workers in the United States who have been denied their back pay as a result of the March 2002 US Supreme Court decision (even though their employment was wrongly terminated as a result of their legitimate attempts to unionise).

The US Supreme Court reasoned that, since they were not entitled to work in the US after they were fired, they could not collect wages for the time they were rendered jobless by their employer's labour law violation. In effect, the court ruled that a worker's violation of immigration laws was more serious than an employer's violation of labour laws.

At the centre of the case is Jos Castro, a Mexican citizen, who was dismissed in 1989 for handing out union cards at Hoffman Plastic, a plastics company in California. Federal labour laws in the United States protect workers from being fired for trying to unionise, so the National Labour Relations Board awarded Castro US$67,000 in back pay. But the Supreme Court said, not so fast.

According to their decision, the law only applies to workers if they're "legal" workers. Since Jos is an illegal immigrant, he wasn't entitled to compensation. Allowing the law to protect undocumented workers would "encourage" illegal immigration, said the Supreme Court justices.

Cruel attack

However, by not giving illegal immigrants the same protection from job harassment and discrimination, the ruling throws the most vulnerable workers in the US to the wolves. The decision is a cruel attack on the estimated seven million undocumented workers in the US who usually toil in the lowest-paid and most degrading jobs.

It's also a slap in the face to unions like the Service Employees International Union and United Farm Workers (UFW), which have spent decades organising immigrant workers, and to the AFL-CIO as a whole, which last year called for amnesty for undocumented workers. Millions of undocumented immigrants in the United States desperately want to legalise their immigration status, however, as a result of restrictive immigration laws, they are unable to do so.

One of the unintended consequences of restrictive US immigration laws has been to force hardworking immigrants to buy and use false documents as the only means to earn a living in the United States. Consequently, US document fraud laws simply serve to criminalise the means by which undocumented workers seek and obtain work.

Interestingly, according to the Northern California Coalition for Immigrant Rights, almost all research shows that undocumented workers are not a drain on US society. It points out that in California, where undocumented workers are four percent of the population, they contribute seven percent to the state's US$900 billion gross annual product.

Barred from benefits

Undocumented workers nationally pay US$7 billion a year in taxes, the coalition noted, including US$2.7 billion for Social Security and US$168 million in unemployment contributions. They are barred by law from receiving any benefit from these programmes, as well as from all forms of welfare.

Dissenting Supreme Court justices said the ruling may have the perverse effect of encouraging more employers to hire undocumented workers, because they won't face penalties if companies fire those workers unjustly. Already, some employers in the US hire undocumented immigrant workers because it is assumed they'll be less likely to complain. Therefore, undocumented workers often work at low-paying and highly dangerous jobs.

This decision rewards employers who seek out undocumented immigrant workers for the lowest-paying and most dangerous jobs. It creates an economic incentive for unscrupulous employers to hire and exploit undocumented workers. It gives those employers an unfair competition advantage over employers that treat workers lawfully and fairly.

For over 16 years, the immigration laws in the United States have provided for employer sanctions against employers who "knowingly" hire undocumented workers. However, rather than stemming "illegal immigration", employer sanctions have served as a weapon against workers who try to organise a union, complain about workplace violations, and improve conditions for all workers. The Hoffman Plastic decision provides employers with an even stronger weapon, since employers now know they will not face serious monetary penalties for their illegal, anti-labour tactics.

Inadvertently the court's decision highlights the contradictions of the US economy's increasing reliance on undocumented workers: while employers say they need them, the law provides the workers with little protection — and the latest US Supreme Court decision erodes that protection further. In a nation that prides itself on the principle of equality and universal human rights, this latest legal limitation, which works against undocumented immigrants, is untenable.