Earlier this month, the United States Court of Appeals for the Second Circuit upheld a controversial NLRB decision—Mezonos Maven Bakery, 357 NLRB No. 47—regarding the award of backpay to undocumented aliens. Specifically, this case considered whether “undocumented workers who have engaged in fraud or criminal activity in violation of the Immigration Reform and Control Act (IRCA) in obtaining or continuing their employment are entitled to backpay where their employer…hired and retained them knowing they were undocumented.”
Finding that the instant matter was materially different from the Board’s decision in Hoffman Plastic, the administrative law judge initially found in favor of the employees. In Hoffman Plastic, the Board‘s holding precluded backpay in a scenario where the alien “violates the IRCA by presenting the employer with fraudulent documents,” and the “employer is unaware of the fraud.”
Specifically, the ALJ ruled that the instant matter was materially different from Hoffman Plastic because the employer—not the employee—violated the IRCA. As a result, the ALJ concluded that a backpay remedy was necessary. The Board, however, disagreed.
The Board Applies Hoffman Plastic
In August 2011, the Board declined to adopt the ALJ Order. According to the Board, Hoffman Plastic’s “holding is categorically worded” with “no distinction based on the identity of the IRCA violator.” As a result, Hoffman Plastic “broadly precludes backpay awards to undocumented workers regardless of whether it is they or their employer who has violated the IRCA. Indeed, “regardless of which party violated the IRCA, the result is an unlawful employment relationship.
A Matter of Public Policy
The Second Circuit Court of Appeals has weighed in as well, upholding the Board’s interpretation of Hoffman Plastic. In its decision, the Second Circuit places particular emphasis on public policy concerns: “Awarding backpay would ‘not only trivialize the immigration laws,” but would also “condone and encourage future violations.” Quoting Hoffman Plastic, the Second Circuit addressed the ALJ’s suggestion that aliens who did not present fraudulent documents but who are in the U.S. illegally, noting that it sees “no reason to think that Congress nonetheless intended to permit backpay where but for an employer’s unfair labor practices, an alien-employee would have remained in the United States illegally, and continued to work illegally, all the while successfully evading apprehension by immigration authorities. “
The Second Circuit did. However, remand the matter back to the Board for consideration of one additional issue: Whether to grant petitioners requested remedy of reinstatement contingent on the production of work authorization documents.Read More