The Second Circuit Court of Appeals held last week that an employer could possibly be required to reinstate illegal aliens previously terminated in violation of the National Labor Relations Act (“NLRA”). Palma v. NLRB. That’s right—an employer that fires employees in violation of NLRA could conceivably be required to reinstate ex-employees it knows to be illegal aliens as long as the aliens can borrow, buy or steal new proof of work authorization and present it to the employer. The case was on appeal from a National Labor Relations Board (“NLRB”) decision that found: (1) the employer unlawfully terminated the aliens for engaging in concerted protected activity under the NLRA, but (2) the aliens were not entitled to an award of backpay because, well, they’re illegal aliens and the Supreme Court forbade such backpay awrds in the Hoffman Plastics case. The NLRB’s decision failed to address whether the employer had a duty to reinstate the undocumented workers. On appeal, the Second Circuit reaffirmed the Hoffman Plastics rule prohibiting backpay awards under the NLRB for undocumented aliens.

The Court went on, however, to discuss “conditional reinstatement” as a separate possible remedy, and sent the case back to the NLRB to consider whether the employer should be ordered to reinstate the undocumented aliens if they now come forward with appropriate work authorization documents. The Court asserted that such “conditional reinstatement” remedies are not specifically foreclosed by Hoffman Plastics. So, at least this Court seems to think that the NLRB can order an employer to reinstate a worker the employer knows to be undocumented simply because the worker can now gin up new work authorization documents. This raises the age old philosophical question: If the NLRB orders an employer to reinstate an illegal alien, will ICE hear it?