(B) by striking the period and inserting ‘‘; 
or’’; and 
(C) by adding at the end the following: 
‘‘(2) in the case of a class action brought to en-
force section 6(d), on the date on which the indi-
vidual becomes a party plaintiff to the class action.’’. 
Subtitle G—Protections for 
Workers 
CHAPTER 1—PROTECTION FOR 
UNDOCUMENTED WORKERS 
SEC. 461. FINDINGS. 
Congress finds the following: 
(1) The National Labor Relations Act (29 
U.S.C. 151 et seq.) (in this chapter referred to as 
the ‘‘NLRA’’), enacted in 1935, guarantees the right 
of employees to organize and to bargain collectively 
with their employers. The NLRA implements the na-
tional labor policy of assuring free choice and en-
couraging collective bargaining as a means of main-
taining industrial peace. The National Labor Rela-
tions Board (in this chapter referred to as the 
‘‘NLRB’’) was created by Congress to enforce the 
provisions of the NLRA. 
(2) Under section 8 of the NLRA, employers 
are prohibited from discriminating against employ-
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ees ‘‘in regard to hire or tenure of employment or 
any term or condition of employment to encourage 
or discourage membership in any labor organiza-
tion’’. (29 U.S.C. 158(a)(3)). Employers who violate 
these provisions are subject to a variety of sanctions, 
including reinstatement of workers found to be ille-
gally discharged because of their union support or 
activity and provision of backpay to those employees. 
Such sanctions serve to remedy and deter illegal ac-
tions by employers. 
(3) In Hoffman Plastic Compounds Inc. v. 
NLRB, 535 U.S. 137 (2002), the Supreme Court 
held by a 5 to 4 vote that Federal immigration pol-
icy, as articulated in amendments made by the Im-
migration Reform and Control Act of 1986 (Public 
Law 99–603; 100 Stat. 3359), prevented the NLRB 
from awarding backpay to an undocumented immi-
grant who was discharged in violation of the NLRA 
because of his support for union representation at 
his workplace. 
(4) The decision in Hoffman has an impact on 
all employees, regardless of immigration or citizen-
ship status, who try to improve their working condi-
tions. In the wake of Hoffman Plastics, employers 
may be more likely to report to the Department of 
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Homeland Security minority workers, regardless of 
their immigration or citizenship status, who pursue 
claims under the NLRA against their employers. 
Fear that employers may retaliate against employees 
that exercise their rights under the NLRA has a 
chilling effect on all employees who exercise their 
labor rights. 
(5) The NLRA is not the only Federal employ-
ment statute that provides for a backpay award as 
a remedy for an unlawful discharge. For example, 
courts routinely award backpay to employees who 
are found to have been discharged in violation of 
title VII of the Civil Rights Act of 1964 (42 U.S.C. 
2000e et seq.) or the Fair Labor Standards Act of 
1938 (29 U.S.C. 201 et seq.) (in retaliation for com-
plaining about a failure to comply with the minimum 
wage). In the wake of the Hoffman decision, defend-
ant employers will now argue that backpay awards 
to unlawfully discharged undocumented workers are 
barred under Federal employment statutes and even 
under State employment statutes. 
(6) Because the Hoffman decision prevents the 
imposition of sanctions on employers who discrimi-
nate against undocumented immigrant workers, em-
ployers are encouraged to employ such workers for 
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low-paying and dangerous jobs because they have no 
legal redress for violations of the law. This creates 
an economic incentive for employers to hire and ex-
ploit undocumented workers, which in turn tends to 
undermine the living standards and working condi-
tions of all Americans, citizens and noncitizens alike. 
(7) The Hoffman decision disadvantages many 
employers as well. Employers who are forced to com-
pete with firms that hire and exploit undocumented 
immigrant workers are saddled with an economic 
disadvantage in the labor marketplace. The unin-
tended creation of an economic inducement for em-
ployers to exploit undocumented immigrant workers 
gives those employers an unfair competitive advan-
tage over employers that treat workers lawfully and 
fairly. 
(8) The Court’s decision in Hoffman makes 
clear that ‘‘any ‘perceived deficiency in the NLRA’s 
existing remedial arsenal’ must be ‘addressed by 
congressional action[.]’ ’’ Hoffman Plastic Com-
pounds Inc. v. NLRB, 535 U.S. 137, 152 (2002) 
(quoting Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 
904 (1984)). In emphasizing the importance of back 
pay awards, Justice Breyer noted that such awards 
against employers ‘‘help[] to deter unlawful activity 
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that both labor laws and immigration laws seek to 
prevent’’. Hoffman Plastic Compounds Inc. v. 
NLRB, 535 U.S. 137, 152 (2002). Because back 
pay awards are designed both to remedy the individ-
ual’s private right to be free from discrimination as 
well as to enforce the important public policy against 
discriminatory employment practices, Congress must 
take the following corrective action. 
SEC. 462. CONTINUED APPLICATION OF BACKPAY REM-
EDIES. 
(a) IN GENERAL.—Section 274A(h) of the Immigra-
tion and Nationality Act (8 U.S.C. 1324a(h)) is amended 
by adding at the end the following: 
‘‘(4) BACKPAY REMEDIES.—Backpay or other 
monetary relief for unlawful employment practices 
shall not be denied to a present or former employee 
as a result of the employer’s or the employee’s— 
‘‘(A) failure to comply with the require-
ments of this section; or 
‘‘(B) violation of a provision of Federal law 
related to the employment verification system 
described in subsection (b) in establishing or 
maintaining the employment relationship.’’. 
(b) EFFECTIVE DATE.—The amendment made by 
subsection (a) shall apply to any failure to comply or any 
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violation that occurs prior to, on, or after the date of en-
actment of this subtitle. 
CHAPTER 2—FAIR LABOR STANDARDS 
ACT AMENDMENTS 
SEC. 466. SHORT TITLE. 
This chapter may be cited as the ‘‘Workers’ Minimum 
Wage and Overtime Rights Restoration Act of 2008’’. 
SEC. 467. FINDINGS. 
Congress finds the following with respect to the Fair 
Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) (in 
this chapter referred to as the ‘‘FLSA’’): 
(1) Since 1974, the FLSA has regulated States 
with respect to the payment of minimum wage and 
overtime rates. In Garcia v. San Antonio Metropoli-
tan Transit Authority, 469 U.S. 528 (1985), the Su-
preme Court upheld Congress’s constitutional au-
thority to regulate States in the payment of min-
imum wages and overtime. The prohibitions of the 
FLSA remain in effect and continue to apply to the 
States. 
(2) Wage and overtime violations in employ-
ment remain a serious problem both nationally and 
among State and other public and private entities 
receiving Federal financial assistance, and has invid-
ious effects on its victims, the labor force, and the 
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general welfare and economy as a whole. For exam-
ple, 7 State governments have no overtime laws at 
all. Fourteen State governments have minimum 
wage and overtime laws; however, they exclude em-
ployees covered under the FLSA. As such, public 
employees, since they are covered under the FLSA 
are not protected under these State laws. Addition-
ally, 4 States have minimum wage and overtime laws 
which are inferior to the FLSA. Further, the De-
partment of Labor continues to receive a substantial 
number of wage and overtime charges against State 
government employers. 
(3) Private civil suits by the victims of employ-
ment law violations have been a crucial tool for en-
forcement of the FLSA. In Alden v. Maine, 527 
U.S. 706 (1999), however, the Supreme Court held 
that Congress lacks the power under the 14th 
amendment to the Constitution to abrogate State 
sovereign immunity to suits for legal relief by indi-
viduals under the FLSA. The Federal Government 
has an important interest in ensuring that Federal 
financial assistance is not used to facilitate viola-
tions of the FLSA, and private civil suits for mone-
tary relief are a critical tool for advancing that in-
terest. 
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(4) After the Alden decision, wage and overtime 
violations by State employers remain unlawful, but 
victims of such violations lack important remedies 
for vindication of their rights available to all other 
employees covered by the FLSA. In the absence of 
the deterrent effect that such remedies provide, 
there is a great likelihood that State entities car-
rying out federally funded programs and activities 
will use Federal financial assistance to violate the 
FLSA, or that the Federal financial assistance will 
otherwise subsidize or facilitate FLSA violations. 
(5) The Supreme Court has upheld Congress’s 
authority to condition receipt of Federal financial 
assistance on acceptance by State or other covered 
entities of conditions regarding or related to the use 
of those funds, as in Cannon v. University of Chi-
cago, 441 U.S. 677 (1979). 
(6) The Court has further recognized that Con-
gress may require State entities, as a condition of 
receipt of Federal financial assistance, to waive their 
State sovereign immunity to suits for a violation of 
Federal law, as in College Savings Bank v. Florida 
Prepaid Postsecondary Education Expense Board, 
527 U.S. 666 (1999). 
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(7) In the wake of the Alden decision, it is nec-
essary, in order to foster greater compliance with, 
and adequate remedies for violations of, the FLSA, 
particularly in federally funded programs or activi-
ties operated by State entities, to require State enti-
ties to consent to a waiver of State sovereign immu-
nity as a condition of receipt of such Federal finan-
cial assistance. 
(8) The Supreme Court has repeatedly held 
that State sovereign immunity does not bar suits for 
prospective injunctive relief brought against State 
officials acting in their official capacity, as in Ex 
parte Young (209 U.S. 123 (1908)). The injunctive 
relief available in such suits under the FLSA will 
continue to be the same as that which was available 
under those laws prior to enactment of this chapter. 
SEC. 468. PURPOSES. 
The purposes of this chapter are— 
(1) to provide to State employees in programs 
or activities that receive or use Federal financial as-
sistance the same rights and remedies for practices 
violating the FLSA as are available to other employ-
ees under the FLSA, and that were available to 
State employees prior to the Supreme Court’s deci-
sion in Alden v. Maine, 527 U.S. 706 (1999); 
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(2) to provide that the receipt or use of Federal 
financial assistance for a program or activity con-
stitutes a State waiver of sovereign immunity from 
suits by employees within that program or activity 
for violations of the FLSA; and 
(3) to affirm that suits for injunctive relief are 
available against State officials in their official ca-
pacities for violations of the FLSA. 
SEC. 469. REMEDIES FOR STATE EMPLOYEES. 
Section 16 of the Fair Labor Standards Act of 1938 
(29 U.S.C. 216) is amended by adding at the end the fol-
lowing: 
‘‘(f)(1) A State’s receipt or use of Federal financial 
assistance for any program or activity of a State shall con-
stitute a waiver of sovereign immunity, under the 11th 
amendment to the Constitution or otherwise, to a suit 
brought by an employee of that program or activity under 
this Act for equitable, legal, or other relief authorized 
under this Act. 
‘‘(2) In this subsection, the term ‘program or activity’ 
has the meaning given the term in section 309 of the Age 
Discrimination Act of 1975 (42 U.S.C. 6107).’’. 
Æ 
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