When the National Labor Relations Board determines that a worker’s firing violated federal labor laws, it generally orders the employer to reinstate the worker and pay back wages. But what if the worker wasn’t legally permitted to work in the United States in the first place? The U.S. Supreme Court previously ruled that the NLRB couldn’t require employers to reinstate workers who were not authorized to re-enter the country. Now, the high court has gone a step further, ruling that the NLRB cannot award back pay to undocumented aliens who were never allowed to work in the U.S.
Employer Fires Union Organizer
Hoffman Plastic Compounds Inc. hired Jose Castro to operate a blender machine at its Paramount plant. A month after Castro distributed union authorization cards to co-workers, Hoffman laid off Castro and three other employees who engaged in union organizing activities.The workers filed a complaint with the NLRB, charging that Hoffman violated federal labor laws by terminating them for their union activities. The NLRB found Hoffman committed unfair labor practices and ordered the employees reinstated with back pay.
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Worker Admits Illegal Status
At a hearing to determine back pay, Castro admitted that he was born in Mexico and was never legally admitted to, or authorized to work in, the U.S. He got his job at Hoffman by presenting a birth certificate of a friend born in Texas. Castro also admitted using the birth certificate to fraudulently obtain a driver’s license and Social Security card and to get another job after Hoffman laid him off. Nevertheless, the NLRB awarded Castro almost $67,000 in back wages for the three-year period from his termination until Hoffman learned of his undocumented status. Hoffman appealed.
Supreme Court Bans Back Pay For Illegal Aliens
A closely divided Supreme Court threw out Castro’s back pay award. The court found that giving illegal aliens back pay runs counter to the policies underlying the immigration laws. For example, extensive employment verification regulations are intended to deny employment to applicants who aren’t lawfully authorized to enter or work in the U.S. The court pointed out that workers who use false documents to obtain employment may be criminally prosecuted, and employers must discharge an employee they discover is undocumented.In this case, Castro’s use of false documents to obtain employment with Hoffman clearly violated immigration laws. And, the court pointed out, Castro could not mitigate his damages by getting another job without using false documents or finding an employer willing to ignore immigration regulations and hire illegal workers. To award back pay in such a case, the court said, would condone past violations of immigration laws and encourage future ones.
Practical Impact
The high court’s decision is good news for employers. But it doesn’t mean you can ignore federal labor laws when it comes to illegal immigrant workers. The court noted that federal labor laws, such as those protecting union organizing activities, do apply to undocumented workers even if they’re not entitled to all legal remedies. And the court pointed out that the NLRB could impose other sanctions on employers who violate federal labor laws, such as ordering them to stop the unlawful conduct and post a notice to employees detailing the unfair labor practices and explaining employees” rights. Employers who don’t comply with the NLRB’s orders also face civil contempt proceedings.The high court’s decision also highlights the importance of following I-9 procedures and scrupulously checking identity and work authorization documents.