Restoring a Willingness to Act: Identifying and Remedying the Harm to Authorized Employees Ignored Under Hoffman Plastics

Abstract

Part I of this Article provides a background for both the NLRA and the IRCA. It examines the goals and remedies of both statutes as well as the impact of the Supreme Court’s Hoffman decision on available remedies. Part II addresses the currently-skewed remedial incentives. It considers why employers are tempted to hire unauthorized workers and commit unfair labor practices that are then inadequately remedied, which creates a situation that adversely effects the rights of authorized employees. Part III more closely analyzes this consequential harm. This Part identifies the erosions on the NLRA’s collective nature and the impact on authorized employees’ terms and conditions of employment as well as their ability to change them. It also examines the far-reaching erosion of mental confidence experienced by authorized employees when considering their statutorily protected rights. This chilling effect, when unaddressed, represents a failure of the NLRA to achieve its remedial goal to restore the status quo ex ante to the employer’s unfair labor practice. In Part IV, this Article considers the literature addressing remedies in cases involving unauthorized workers, including the many existing suggestions for refinements that might bring balance to the currently misaligned incentive structure. It observes, however, that these proposals reflect a current focus on unauthorized workers that not only poses practical and political dilemmas if implemented but, as a normative measure, continues to overlook the problem of the harm done to authorized employees—and may even cause them further harm. Given that any attempt to amend the NLRA or modify Hoffman to account for this developing problem is almost certainly doomed to fail in the foreseeable future, Part V concludes that it may be more expedient to work within the existing statutory text and case law to address the distinct harm to authorized worker as a part of the restoration of the status quo. It therefore suggests that in cases where an unfair labor practice has been found involving an unauthorized worker, the General Counsel and the Board should routinely consider expanded appropriate remedies. These remedies could potentially include longer notice posting times, notice mailing with explanatory material educating the remaining workers of their rights, publication of the notice for a period of weeks in a publication of general circulation, visitation to ensure compliance with the Board’s order, and other measures designed to restore the confidence and willingness to act of employees, particularly the authorized workers who have been harmed by their employer’s actions.