San Diego Law Review


Joseph Nalven

Library of Congress Authority File


Document Type



This Comment addresses the availability of remedies for undocumented workers for retaliatory discharge in light of the Supreme Court's decision in Sure-Tan, Inc. v. NLRB. The author suggests that, while courts traditionally hold that undocumented workers are "employees" under the National Labor Relations Act and are protected against retaliatory constructive discharges by employers, there is ambiguity as to the remedies available to undocumented workers who have been subject to such discharges. The author argues that, in Sure-Tan, the Court held that the affected workers could not receive back pay or reinstatement remedies until they were legally present in the United States, but that subsequent judicial and administrative decisions have limited the Sure-Tan holding. The author examines the Sure-Tan decision, the post Sure-Tan cases, and the recent passage of the Immigration Reform and Control Act of 1986, and proposes a model for providing remedies to undocumented workers.