In a recent decision, the National Labor Relations Board (“NLRB”) ruled, in Mezonos Maven Bakery, Inc., that it did not have the authority to award back pay to undocumented workers, even where the employer violated federal immigration law by failing to ask for work authorization documents when it hired the workers. Relying on the Supreme Court of the United States’ decision in Hoffman Plastic Compounds, Inc. v. NLRB, the NLRB held that the Hoffman decision foreclosed back pay for all undocumented workers, regardless of whether the workers had presented fraudulent documents to obtain their jobs.

In Mezonos Maven Bakery, seven undocumented workers were terminated after complaining as a group about a supervisor. The employer never asked the workers for work authorization documents, nor did the workers present fraudulent documents. Following their termination, the workers filed an unfair labor practice charge. The parties settled their dispute, and the NLRB ordered reinstatement and back pay pursuant to the settlement agreement. The employer later argued that it could not reinstate the workers nor pay back pay because the workers were not legally authorized to work in the United States. The NLRB held that, because awarding back pay to undocumented workers lies beyond the scope of its remedial authority under Hoffman, the workers could not be awarded back pay. This decision solidifies the NLRB’s position concerning undocumented workers, possibly putting an end to post-Hoffman attempts to narrow the scope and/or application of that decision.