In 1982, Emil Vassileu—born in Pernik, Bulgaria—arrived legally in the United States, a political refugee from Bulgaria’s Communist regime. Because he was a top student, he studied at university; but, there was “no future, no freedom” in Bulgaria. When he reached Cleveland, Ohio, he sought out the Dean of Case Western Reserve University. Although he spoke little English, he so impressed the Dean that he was admitted as a junior. In 1985, he received a B.S. in civil engineering and left for California. In 1986, after working briefly for others, he started a business, Van Elk, Ltd., a welding and steel-working company that bids on private and public works projects. Today, Van Elk, Ltd. has grown to ten full-time employees and has enjoyed over two decades of success.

Over the years, Mr. Vassileu sought to teach his craft to his employees to allow them the same opportunities he enjoyed. His employees always returned the favor; that is, they did, until September 2003, when four former employees sued Van Elk arguing that they had not been paid in accordance with California’s mini-Davis-Bacon law, which sets “prevailing wages” for public works projects. Mr. Vassileu’s first response was that five of the eight projects named by the former employees were not public works projects; instead, they were purely private projects. As to the remaining three claims, they were for off-site work at Van Elk’s shop and were not subject to prevailing wages.

During the course of discovery, Van Elk’s California lawyers learned that the former employees were in the United States illegally and, if a 2002 ruling by the U.S. Supreme Court applied, could not file a lawsuit to collect unpaid wages. Thereupon, in July 2004, Van Elk’s lawyers argued that, if the matter went to trial, the facts would show that Van Elk had paid all that was owed the former employees. In the meantime, however, argued Van Elk’s lawyers, the court lacked jurisdiction to hear the case because of that Supreme Court ruling, which deprived the illegal aliens of their right to sue. In November 2004, the Los Angeles Superior Court agreed, holding that, in accordance with Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), the former employees could not sue for unpaid prevailing wages because they were illegal aliens.

In Hoffman, the Supreme Court held that federal labor laws did not supersede federal immigration laws by ruling, 5-4, that illegal aliens could not sue to collect backpay. The Court noted that labor laws sought to prevent and remedy unfair labor practices, which required employer penalties and sanctions as well as the ability of wronged employees to sue. At the same time, recognized the Court, granting illegal aliens the rights citizens enjoy would both “trivialize the immigration laws” and violate Congress’s intent to end the unlawful employment of illegal aliens, which Congress called a “magnet . . . attract[ing] aliens here illegally.” Plus, held the Court, “traditional remedies,” including civil and criminal proceedings, are a sufficient “spur and catalyst” to ensure that employers obey the law and do not hire illegal aliens.

Hoffman was too much for California legislators who responded by enacting prevailing wage statutes that provided that, notwithstanding the Supreme Court’s ruling in Hoffman, in determining whether an employee could sue for prevailing wages, his immigration status was “irrelevant.” Therefore, when Van Elk’s former employees appealed, the California Court of Appeal seized upon the language in California’s post-Hoffman statutes and reversed the lower court’s ruling. Likewise, the Court of Appeal rejected Van Elk’s lawyers’ argument that, by overturning Hoffman, the California Legislature violated the Constitution’s Supremacy Clause.

On October 22, Van Elk asked the U.S. Supreme Court to decide whether Hoffman applies or should be extended to apply to its situation. The real question that the Court needs to determine, however, is who is in charge of immigration policy, Congress or California?