On August 9, 2011, in Mezonos Maven Bakery, Inc., the National Labor Relations Board (“NLRB”) concluded that it lacks authority to award backpay to undocumented immigrants whose rights under the National Labor Relations Act (“NLRA”) were violated. In doing so, the NLRB broadly interpreted the Supreme Court’s decision, in Hoffman Plastic Compounds v NLRB in which the Supreme Court held that the NLRB lacks the power to award back pay to an undocumented worker who, in violation of federal immigration law, presented fraudulent work authorization documents.  

In Mezonos, seven former employees – who never presented proof of authorization to work – filed an unfair labor practice charge alleging that their employer violated their right to engage in concerted activity under the NLRA when they were terminated following an internal complaint about their supervisor. After a settlement was reached whereby the NLRB ordered the employer to reinstate the former employees and award them back pay, the employer argued that the Supreme Court’s Hoffman decision precluded such a remedy.

A three-member panel of the NLRB unanimously concluded that Hoffman “broadly precludes backpay awards to undocumented workers regardless of whether it is they or their employer who has violated IRCA”. Two members of the panel, NLRB Chairman, Wilma Liebman and Member, Mark Pearce, filed a separate concurring opinion stating that they reached this conclusion “reluctantly” because this decision will lead to a chilling effect on employees’ rights under the NLRA. Liebman and Pearce cautioned employers not to interpret this decision to mean that they can openly discriminate against undocumented workers and communicated a willingness “to consider in a future case any remedy within [the NLRB’s] statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”

This recent decision is limited to the remedies available through the NLRB and does not implicate the rights of undocumented workers in other administrative or judicial venues. Employers should also recognize that they cannot hire or discharge undocumented workers without consequence. Federal immigration law provides for civil fines and possible criminal prosecution relating to the hire of undocumented workers.