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NLRB Orders Conditional Reinstatement of Undocumented Workers

May 11, 2015 by

When an employer knowingly hires individuals who are not authorized to work in the U.S., and unlawfully terminates them in violation of the National Labor Relations Act, the employees may be reinstated to their former or equivalent positions on the condition that they present proof of their work authorization within a reasonable amount of time.

This was the recent holding of the National Labor Relations Board in Mezonos Bakery.  In that case, seven undocumented workers were employed by Mezonos Maven Bakery, some for as many as eight years.  The employer had not asked the employees to present work authorization documents and the workers had never provided such documentation. Yet, when the workers collectively complained that their supervisor was mistreating them, the company fired them.  The Board found that the terminations were retaliatory and unlawful and ordered the company to conditionally reinstate the workers without back pay.

The Board did not decide what constitutes a reasonable period of time, but noted that it depends on the circumstances of each case.  The Board also pointed out that in its earlier decision, Sure-Tan Inc., where the employer had retaliated against undocumented workers because of their union activity, the employer was ordered to hold open an offer of employment for a period of four years to allow the workers a reasonable amount of time to arrange for legal reentry into the US.

The Board rejected company arguments that conditional reinstatement of undocumented workers is prohibited by federal law.  First, the U.S. Supreme Court has approved conditional reinstatement in other cases and found that it did not prevent the employer from complying with the Immigration and Nationality Act.  In Mezonos Bakery, the Board extended that reasoning, finding that reinstating an undocumented worker, on the condition that the worker complete a form I-9 and provide proof of work authorization, does not prevent an employer from complying with the Immigration Reform and Control Act (IRCA).  Second, conditional reinstatement strikes an appropriate balance between undocumented workers’ NLRA right to be free from retaliation for unionizing or engaging in protected collective action, and an employer’s obligations under IRCA.  Lastly, the Board clarified that while the U.S. Supreme Court decision in Hoffman Plastics limits an undocumented worker’s ability to recover wages that would have been earned if the employer had allowed an individual to keep working (back pay), the decision does not prohibit conditional reinstatement of undocumented workers.

The Mezonos Bakery decision makes clear that undocumented workers are entitled to a meaningful remedy when they are the victims of unfair labor practices.  It is also an important reminder that, regardless of their immigration status, workers covered by the NLRA have the right to act collectively to improve working conditions and organize a union.


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