On June 7, 2011, Richard A Siegel, Associate General Counsel of the National Labor Relations Board ("NLRB"), issued a memorandum ("Siegel Memo") to all regional offices that contained guidance on how to address the immigration status of employees involved in representation cases and unfair labor practice cases before the NLRB. The Siegel Memo supplements a memorandum issued nine years ago by the NLRB's General Counsel following the decision by the Supreme Court of the United States in Hoffman Plastic Compounds Inc. v. NLRB, 535 U.S. 137 (2002). In Hoffman, the Court held that undocumented workers are not entitled to receive back pay awards in proceeding under the National Labor Relations Act ("NLRA") if their employment was not lawful under the IRCA.
In the Siegel Memo, the NLRB acknowledged that immigration issues can be injected into NLRB proceedings. However, the Siegel Memo emphasized that the NLRA protects all employees, "regardless of immigration status" and that the status of an employee generally is not relevant in representation cases or in proceedings concerning the merits of unfair labor practice charges. In this regard, the Siegel Memo instructs the NLRB's regional offices that:
- Regions generally should presume that employees are authorized to work, should refrain from conducting immigration investigations, and should object to any inquiries into an employee's status;
- Regions should investigate a complainant's immigration status only after the employer-respondent establishes a genuine issue during the remedial stage of the proceeding; and
- Regions should conduct an investigation by asking the Union, the charging party, or the employee to respond to the employer-respondent's evidence.
The Siegel Memo suggests that it simply reiterates NLRB policy, but the immigration issues in NLRB proceedings, as in other forms of litigation, have become extremely complex. Many states have looked to the actions of the employer to determine the rights of an undocumented litigant. If the employer was complicit or at looked the other way, regarding the worker's status, these courts have found it unfair for the employer to benefit from its own legal violations. Where, however, the employer satisfied all legal requirements and was misled by misrepresentations from the complaining worker, that conduct is relevant to the proceeding and the worker should not be able to avoid the consequences of these unlawful actions. How this will play out in future NLRB proceedings remains to be seen.