Immigrant Workers Fired for Correcting Their Employment Records Ordered Reinstated with Back Pay

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

IMMIGRANT WORKERS FIRED FOR CORRECTING THEIR EMPLOYMENT RECORDS ORDERED REINSTATED WITH BACK PAY
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

An arbitrator has held that two workers from El Salvador were terminated without just cause when they came forward to correct their employment records after providing false documents at the time of hire and has ordered the employer to reinstate the two workers with back pay.

When they were first hired, Ana Mancia and Feliciano Sinecios provided false Social Security numbers (SSNs) and green cards when filling out job applications and I-9 employment eligibility verification forms for AmeriPride Linen and Apparel Services (AmeriPride). Shortly afterwards, the workers applied for and were approved for temporary protected status (TPS). They each subsequently obtained a valid SSN. With the help of coworkers, Mancia and Sinecios each voluntarily went to company management to provide their new SSN. However, management told them to bring a letter from the Social Security Administration (SSA) explaining why they had two different SSNs. AmeriPride terminated Mancia's employment on Oct. 29, 2001, after she failed to produce such a letter from the SSA. Similarly, Sinecios was fired after admitting to having provided false documents. They were both fired for "dishonesty," which is a ground for immediate termination under their union contract.

Their union, Local 66L of the Union of Needletrades, Industrial and Textile Employees (UNITE!), filed a grievance on their behalf, alleging that AmeriPride terminated Mancia and Sinecios in violation of the "just cause" clause in their collective bargaining agreement. The arbitrator found there was credible evidence establishing that AmeriPride "did not consistently apply its 'dishonesty' rule to cases involving employees that submitted new social security cards to replace social security cards submitted at the time of hire." Since Mancia and Sinecios "were not treated in the same manner as other similarly situated employees," the employer was found to have acted in violation of the just cause principle. The arbitrator ordered that AmeriPride reinstate these two workers, compensate them for any lost wages or benefits, and expunge their personnel files of any references to their terminations.

In ordering these remedies, particularly back pay, the arbitrator held that the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB (see "Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing," Immigrants' Rights Update, Apr. 12, 2002, p. 10) did not preclude such remedies. As opposed to the worker in Hoffman, who was not authorized to work at the time he was fired, Mancia and Sinecios applied and were approved for lawful immigration status prior to being fired. Moreover, the issue of their use of false documents at the time of hire came up because they voluntarily came forward to management to correct their records, rather than the information being discovered as a result of management's own actions. The arbitrator also distinguished Hoffman by noting that an award of reinstatement and back pay in this case does not encourage illegal immigration, since Mancia and Sinecios already have lawful status. Instead, the arbitrator reasoned, these remedies could encourage workers to voluntarily seek lawful status.

AmeriPride Linen and Apparel Services and Local 66L, Union of Needletrades, Industrial and Textile Employees (UNITE!), AFL-CIO, FMCS Case No. 021120-01435-3, Apr. 4, 2002.