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Vanderbilt Journal of Transnational Law

Article Title

Recent Decision

First Page

161

Abstract

Two dismissed employees, through their collective bargaining agent, sought reinstatement through the arbitration process. Relying on a California statute which made knowing employment of an illegal alien unlawful, the employer determined that the employees resided in the United States illegally and dismissed them." The collective bargaining representative argued that the employer lacked "just cause" to make the dismissal. The arbitrator adopted the representative's position, ruling that continued employment of the two illegal aliens would not subject the employer to criminal liability and holding the California statute "dormant." Based on this finding, the arbitrator awarded reinstatement to each employee and backpay to one employee. The district court affirmed the arbitrator's decision. On appeal, the employer argued that the arbitrator's award was in error because the two employees were not legally entitled to work in the United States." The Ninth Circuit rejected the argument and upheld the arbitrator's decision." The court recognized that federal laws subjected neither the employer nor the undocumented aliens to criminal or civil liability because of their employment relationship. The court further supported the arbitrator's decision because it did not encourage the illegal reentry of the discharged employees and thus did not conflict with the Immigration and Naturalization Act. Finally, the court recognized that the Supreme Court had considered section 2805 and found it unconstitutional. The California labor statute upon which the employer relied in dismissing the employees was dormant and therefore was not the basis of a legitimate dismissal. Because the arbitrator did not commit errors in "manifest disregard of the law," the Ninth Circuit affirmed the decision to provide traditional labor remedies to the discharged employees. Held: Relief provisions of collective bargaining agreements protect undocumented aliens. In addition, alien workers may receive reinstatement and backpay for labor law violations if they need not reenter the United States illegally in order to receive the remedies.

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