National Labor Relations Board Limits Undocumented Workers' Remedies

8.18.11

On August 9, 2011, the National Labor Relations Board (NLRB) issued a decision holding that undocumented workers are not entitled to back pay or reinstatement, even if their claims are meritorious.

In Mezonos Maven Bakery, Inc., 357 NLRB No. 47 (2011), a group of undocumented workers were terminated following complaints about the treatment they were receiving from a supervisor.The employees then filed unfair labor practice charges.The employer opposed reinstating and reimbursing the employees because their undocumented status precluded back pay, even though it was the employer, and not the employees, who violated the Immigration Reform and Control Act (IRCA).

The Board analyzed the Supreme Court's decision in Hoffman Plastic Compounds and concluded that regardless of which party violated the IRCA, the Board could not award back pay."The holding is categorically worded: back pay may not be awarded to undocumented aliens.It suggests no distinction based on the identity of the IRCA violator."Thus, whether the employer knowingly hired undocumented workers, or was given false documentation by the employee, "undocumented immigrants working in the United States are party to an employment relationship the Court deems criminal."

The Arizona legislature has expressly eliminated discretionary benefit payouts to undocumented workers in many Arizona statutes such as those involving unemployment compensation, the Arizona Health Care Cost Containment System (AHCCCS), and welfare. As a result, there has not been a need for Arizona courts to weigh in as of late. However, although the Arizona Court of Appeals upheld a denial of workers compensation benefits to an undocumented furniture worker in 2006 because the denial was "not unfounded," one of the judges opined that because the legislature did not expressly provide that undocumented workers were "employees" under the Workers Compensation Act, they should not be entitled to benefits under that Act. Gamez v. Indus. Comm'n of Arizona, 213 Ariz. 314, 325, 141 P.3d 794, 805 (App. 2006)(Barker, J., concurring).

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