NLRB Orders Conditional Reinstatement of Workers Undocumented at Time of Unlawful Discharge | Practical Law

NLRB Orders Conditional Reinstatement of Workers Undocumented at Time of Unlawful Discharge | Practical Law

In Mezonos Maven Bakery, Inc., the National Labor Relations Board (NLRB) ordered the conditional reinstatement of unlawfully discharged employees who did not have proper documentation to work in the US at the time of their discharge. The NLRB found that conditional reinstatement furthered the policies of National Labor Relations Act (NLRA) and was not prohibited by the Supreme Court's decision in Hoffman Plastic Compounds, Inc. or by the Immigration Reform and Control Act (IRCA). The conditional reinstatement order requires the employer to provide the employees with a reasonable period of time to complete the US Citizenship and Immigration Services (USCIS) Form I-9 and provide the proper documentation.

NLRB Orders Conditional Reinstatement of Workers Undocumented at Time of Unlawful Discharge

by Practical Law Labor & Employment
Published on 09 Apr 2015 • USA (National/Federal)
In Mezonos Maven Bakery, Inc., the National Labor Relations Board (NLRB) ordered the conditional reinstatement of unlawfully discharged employees who did not have proper documentation to work in the US at the time of their discharge. The NLRB found that conditional reinstatement furthered the policies of National Labor Relations Act (NLRA) and was not prohibited by the Supreme Court's decision in Hoffman Plastic Compounds, Inc. or by the Immigration Reform and Control Act (IRCA). The conditional reinstatement order requires the employer to provide the employees with a reasonable period of time to complete the US Citizenship and Immigration Services (USCIS) Form I-9 and provide the proper documentation.
On March 27, 2015, in Mezonos Maven Bakery, Inc., the panel (Board) heading the NLRB's judicial functions ordered the conditional reinstatement of employees who, at the time they were unlawfully discharged, did not have proper documentation to work in the US (362 N.L.R.B. slip op. 41 (Mar. 27, 2015)). The Board's conditional reinstatement order requires the employer to provide a reasonable period of time for employees to complete the USCIS Form I-9 and provide the proper documentation.

Background

In 2003, several Mezonos employees were unlawfully discharged for engaging in protected concerted activity. In 2005, the Board ordered Mezonos to provide backpay and to offer unconditional reinstatement to the workers. After the US Court of Appeals for the Second Circuit enforced the order, the NLRB General Counsel issued a compliance specification seeking backpay and unconditional reinstatement. Mezonos argued that the former employees were not entitled to backpay or reinstatement because they were not authorized to work in the US (Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002)).
At an evidentiary hearing, the administrative law judge (ALJ) recommended backpay for seven former employees, distinguishing Hoffman because Mezonos knowingly employed undocumented workers, while the employees in Hoffman had presented fraudulent documents, and the employer was unaware of the fraud. The ALJ also stated that an order of reinstatement should be conditioned upon documentation that complied with the Immigration Reform and Control Act (IRCA), but he did not include a conditional reinstatement provision in his order. The Board, in a supplemental decision and order, reversed the grant of backpay, holding that it was precluded by Hoffman but did not address the issue of conditional reinstatement. Several former employees filed a petition for review to the Second Circuit. The Second Circuit remanded the reinstatement matter back to the Board.

Outcome

The Board found that:
  • As a threshold issue, the General Counsel and former employees were not estopped from seeking, and did not waive the right to seek, an order of conditional reinstatement.
  • Conditional reinstatement is an appropriate remedy when an employer knowingly employs unauthorized workers and unlawfully discharges them in violation of the NLRA.
  • The Supreme Court and the NLRB have previously approved conditional reinstatement as a remedy in undocumented employee unlawful discharge cases under the IRCA (see Sure-Tan v. NLRB, 467 U.S. 883 (1984) and A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995)).
  • A conditional reinstatement order prevents the Board from attempting to determine employee immigration status.
  • While the court in Hoffman found that awarding backpay to undocumented workers clashes with immigration policies under the IRCA, it did not prohibit conditional reinstatement, as the court was not faced with that remedy (535 U.S. at 151).
  • Conditional reinstatement is consistent with the policies of both the NLRA and IRCA by:
    • accommodating federal immigration interests required by the IRCA by allowing reinstatement only if the employee provides necessary documentation; and
    • providing a remedy to undocumented workers facing unfair labor practices and a means of deterring future unfair labor practices.

Practical Implications

In Mezonos Maven Bakery, the NLRB found that Hoffman does not preclude it from ordering conditional reinstatement. Although the NLRB is still prohibited from ordering backpay to individuals not legally authorized to work in the US, this ruling provides a way for the NLRB to work around Supreme Court precedent in Hoffman by ordering the conditional reinstatement of undocumented workers and providing them with a reasonable time to provide completed I-9 forms and accompanying documentation. Employers should ensure they are compliant with immigration laws and be aware that even employees who lack proper documentation at the time of their discharge still have restatement as a remedy under the NLRA if they can establish an unfair labor practice and provide proper documentation within an undefined reasonable period of time.