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Back-Pay Damages and Reinstatement Denied to Undocumented Workers

Employers should remain diligent in collecting work authorization documentation from employees.

November 3, 2011

Undocumented workers at Mezonos Maven Bakery Inc., who were never asked for work authorization documents, were fired after complaining as a group about treatment from a supervisor. They filed unfair labor practice charges with the National Labor Relations Board. Pursuant to the settlement, the NLRB ordered Mezonos to offer reinstatement and pay lost wages. Mezonos argued it could not offer reinstatement or back pay to the workers because of the Supreme Court's decision in Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137 (2002). That ruling held that the NLRB may not order employers to give back pay to undocumented claimants—even when their firing constituted an unfair labor practice under the National Labor Relations Act—if their employment was unlawful under the Immigration Reform and Control Act, or IRCA.

An administrative law judge ruled against Mezonos, finding the case distinguishable from Hoffman because it was the employer, not the workers, who violated the IRCA by failing to verify their work authorization status. The company appealed to the NLRB.

The NLRB held that Hoffman controlled the outcome of this case. In a concurring opinion with the NLRB ruling, some of the board members stated that they nonetheless remain "convinced that the result in this case—an order relieving the employer of economic responsibility for its unlawful conduct—can only serve to frustrate the policies of both the NLRA and our nation's immigration laws." The NLRB also said that the case should not be construed as shutting the door on other possible monetary remedies for undocumented workers. Mezonos Maven Bakery Inc., 357 NLRB, No. 47 (Aug. 9, 2011).

Impact: Employers should remain diligent in collecting work authorization documentation from employees. Although the Supreme Court has relieved employers of economic responsibility for unlawful conduct, the NLRB appears to be searching for exceptions to the Supreme Court's holding. Consideration must also be given to substantial monetary fines under the IRCA for various violations of that law.

Workforce Management, November 2011, p. 21 -- Subscribe Now!

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.