On August 9, 2011, the National Labor Relations Board ("NLRB") issued a Supplemental Decision and Order in Mezonos Maven Bakery, Inc., 357 N.L.R.B. No. 47 (Aug. 9, 2011). Previously, in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court of the United States affirmed an NLRB decision that refused to award back pay to undocumented workers for violations of the National Labor Relations Act ("NLRA"), where the employers had satisfied their Form I-9 obligations under the Immigration Reform and Control Act of 1986 ("IRCA"), but the workers had misrepresented their status to secure employment. In the Mezonos case, the NLRB was required to determine whether the Hoffman rule also foreclosed a back pay award to undocumented workers, where the employer had violated the IRCA. The NLRB held that Hoffman forecloses an award of back pay to undocumented workers, even if the employer was complicit in the IRCA violation.

In a unanimous three-member decision, the NLRB panel denied back pay to seven illegal immigrants who worked for the Mezonos Maven Bakery, Inc. ("Mezonos"). According to the NLRB, Mezonos had hired these workers without satisfying its Form I-9 obligations under the IRCA. They were then fired after complaining that their treatment by a supervisor violated the NLRA. In November 2006, the ALJ who heard the case rejected the employer's Hoffman defense to the worker's back pay claims because the employer, not the workers, had violated the IRCA by failing to require Form I-9 completion. The NLRB reversed, concluding that the Supreme Court's decision in Hoffman precluded an award of back pay regardless of whether the employer knew they were undocumented and violated the IRCA. In a concurrence, two members of the panel indicated that, if writing on a clean slate, they would not have reached this conclusion because it promoted worker abuse and excused violations of the NLRA. However, they reluctantly agreed that the Supreme Court's decision in Hoffman mandated the denial of the workers claims.

It remains to be seen what impact, if any, decisions like Mezonos will have on the increasing volume of state and federal claims by undocumented workers for damages, including lost wage, personal injury, and related litigations. For example, in June 2011, the New York Supreme Court, Appellate Division, First Department, decided Angamarca v. New York City Partnership Housing Development Fund Co., Inc., Index No. 115471/04 (June 22, 2011). Angamarca was a construction worker hired by a contractor that was aware of his undocumented status. The employer never completed the Form I-9 requirements, paid him in cash, and never deducted wages as required by federal law. After Angamarca was seriously injured on the job, he sued to recover damages, including back pay, medical expenses, and future lost income. The lower court refused to allow the employer to examine Angamarca about his immigration status or the impact that this status might have had on the size of the damages that he claimed. The employer sought to show that Angamarca would have earned less in his home country and would have had to pay less for medical expenses, and that this should be factored into any damage award. The trial court refused to allow the employer to pursue this line of inquiry. The Appellate Division, First Department, affirmed, concluding that the plaintiff's immigration status was "irrelevant" to his damage claims.

We suspect that the NLRB's decision in Mezonos may cause state courts, like the one in Angamarca, to reconsider the relevance of immigration status to damage calculations in personal injury and other claims brought by undocumented workers.