The National Labor Relations Board has ruled that a 2002 U.S. Supreme Court decision compels the conclusion that the Board lacks remedial authority to award backpay to undocumented immigrant workers whose rights have been violated under the National Labor Relations Act, even in cases where their illegal status was known to the employer at the time of hiring.
A three-member panel of the Board – Chairman Wilma B. Liebman and Members Mark Gaston Pearce and Brian Hayes – issued the unanimous decision in Mezonos Maven Bakery, with Member Craig Becker recused. The Board cited broad language in the Supreme Court decision, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137(2002), which made clear that “awarding backpay to undocumented workers lies beyond the scope of [the Board’s] remedial authority, regardless of whether the employee or employer violated” the Immigration Reform and Control Act of 1986 (IRCA). View the decision here.
In a concurring opinion, Chairman Liebman and Member Pearce agreed that Hoffmanis controlling authority and thus precludes backpay here. But they reviewed the policy implications of that result, writing that, “in addition to the obvious failure to make employee-victims whole[,] the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.” Law-abiding employers who must compete with immigration-law violators also may be harmed, they wrote.
The seven employees in question worked for Mezonos Maven Bakery in Brooklyn for up to eight years, and were not asked for documentation when they were hired. They were fired on February 12, 2003, after complaining as a group about treatment they were receiving from a supervisor. Unfair labor practice charges were filed, the parties settled, and the Board issued an unpublished Decision and Order pursuant to a formal settlement stipulation. The Board ordered Mezonos, among other things, to offer reinstatement and to make the employees whole for lost wages and benefits, and that order was enforced by the United States Court of Appeals for the Second Circuit.
However, Mezonos later argued that it could not offer reinstatement or backpay under the Hoffman decision because the workers were undocumented. On November 1, 2006, Administrative Law Judge Steven Davis decided against the employer, finding that in this case (unlike Hoffman), it was not the workers but the employer who violated IRCA by failing to verify their work authorization status. That decision was appealed to the Board, resulting in the current decision.