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NLRB Issues Guidance to Regions on Procedures and Remedies After Supreme Court Decision in Hoffman


The Employment and Labor Law Alert

August 5, 2002

In Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court reversed enforcement of a Board order awarding back pay for violations of the National Labor Relations Act (“NLRA”) to an undocumented alien not authorized to work in the United States, where the employer had hired the worker without knowledge of his immigration status. The Court reasoned that the immigration laws precluded the National Labor Relations Board (“NLRB”) from awarding such a remedy. In the face of this decision, the General Counsel of the NLRB issued a Memorandum dated July 19, 2002 to the regional directors, officers-in-charge, and resident officers on procedures and remedies for workers who may be undocumented aliens.

In accordance with the NLRB’s mandate to protect workers, the Memorandum directs the regions to presume employees are lawfully authorized to work, to refrain from conducting sua sponte immigration investigations and to object to questions relating to immigration status at the merits stage. At the remedy stage, the regions will have to comply with Hoffman where the facts mirror the facts in Hoffman. In Hoffman, the employer was unaware of the undocumented status of the worker and discharged the employee in violation of the NLRA. Noting that the Hoffman court grounded its decision on the wrongdoing of the alien in circumventing the immigration laws rather on than the wrongdoing of the employer, the Board concluded that the Hoffman rationale would make no distinction in cases where the employer knowingly hired undocumented aliens. Thus the regions are directed not to seek a backpay remedy where the evidence establishes that a worker was not authorized to work during the backpay period, regardless of whether the employer was aware of his status at the time of hiring.

However, Hoffman left open whether back pay is available in non-discharge situations, where the alien continues in employment, but under unlawfully imposed terms, such as a unilateral change in working conditions. The NLRB has concluded that the Hoffman court “did not preclude compensation for undocumented workers for work previously performed under unlawfully imposed terms and conditions, e.g., a unilateral change of pay or benefits.” In such situations, the NLRB concludes a backpay award that essentially makes the worker whole for the work he or she has already performed is permitted under Hoffman.

Moreover, the Board urges the regions to seek a formal settlement in cases involving employers that knowingly hire undocumented workers and use their work authorization status to threaten and discharge them. By creating a formal settlement in such cases, the Board will have the additional remedy of contempt proceedings as a deterrent against future statutory violations.

The Board also directed the regions to submit cases to the Division of Advice where it is unclear whether an award of backpay would run counter to the Hoffman rationale or where special remedies may be warranted.

The Equal Employment Opportunity Commission (“EEOC”) also reacted to Hoffman, issuing a directive on June 27, 2002 that rescinds an earlier enforcement guidance on remedies available to undocumented workers under federal employment discrimination laws. The earlier guidance, issued in 1999, relied on NLRA cases to conclude that undocumented workers were entitled to all forms of monetary relief, including post-discharge backpay. Since Hoffman clearly undermines that conclusion, the EEOC rescinded the earlier guidance in order to evaluate the effect of Hoffman on the availability of monetary remedies to undocumented workers.

The EEOC noted that it is still settled principle that undocumented workers are protected by federal employment discrimination statues. Like the NLRB, the EEOC announced that it would not on its own initiative inquire into a worker’s immigration status or consider a worker’s immigration status when evaluating the merits of a discrimination charge. The EEOC also reiterated that it would vigorously pursue charges filed by any worker covered by the federal employment discrimination laws.