NLRB Approves Conditional Reinstatement of Terminated Undocumented Workers

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By Lawrence E. Dubé

April 1 — The National Labor Relations Board held an employer that knowingly employs undocumented workers and then fires them in violation of federal labor law may be ordered to offer the workers reinstatement on condition they document their authorization for employment under the Immigration Reform and Control Act.

The board action came after the U.S. Court of Appeals for the Second Circuit directed the board to consider the reinstatement requests of employees of Mezonos Maven Bakery Inc. in New York.

In a decision released March 31, NLRB Chairman Mark Gaston Pearce and Members Philip A. Miscimarra and Kent Y. Hirozawa said the U.S. Supreme Court has held the board may not award back pay to undocumented workers, but the high court did not preclude orders for conditional reinstatement.

Such orders, which may be “the only means available” for the NLRB to provide relief to undocumented workers, accommodate the interests protected by the IRCA and the National Labor Relations Act, the board members said.

Remedies for Undocumented Workers Questioned

According to NLRB and court records, seven undocumented immigrants worked for Mezonos for as long as eight years without being asked for work authorization documents.

The workers were fired in 2003 after complaining to the employer that they were being mistreated by a supervisor. They filed NLRB unfair labor practice charges, which the company settled by signing a formal settlement and stipulating to the entry of a Second Circuit judgment.

The board issued a supplemental decision (357 N.L.R.B. No. 47, 191 LRRM 1049 (2011)) that the employees could not be awarded back pay because the Supreme Court's ruling in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 169 LRRM 2769 (2002), precludes such an award for workers employed in violation of the IRCA.

On review, the Second Circuit agreed that back pay was not appropriate (723 F.3d 176, 196 LRRM 2328 (2d Cir. 2013)). However, the court said the NLRB failed to resolve the employees' request for conditional reinstatement, and the court remanded the case to the board on that issue.

Reviewing the Supreme Court decision in Hoffman Plastics, Pearce, Miscimarra and Hirozawa said the court “did not cast doubt on the use of conditional reinstatement orders in cases involving undocumented discriminatees.”

In fact, the board members said, the Supreme Court approved the use of conditional reinstatement remedies in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 116 LRRM 2857 (1984), and the board found such orders appropriate in cases after Hoffman Plastics.

Workers Given Time to Show Work Authorization

The board ordered Mezonos to offer the discharged employees reinstatement “provided that they complete, within a reasonable time, USCIS Form I-9, including the presentation of the appropriate documents, in order to allow the Respondent to meet its obligations under the Immigration Reform and Control Act.”

The board said it would not immediately attempt to decide what would be a reasonable time for the Mezonos employees to present documentation of their authorization to work in the U.S. but would leave the issue for determination in supplemental NLRB proceedings, if required.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9v6mac.