NLRB Issues Guidance on Procedures Implementing Hoffman Plastic Decision

IMMIGRANTS & EMPLOYMENT

Immigrants' Employment Rights and Remedies

NLRB ISSUES GUIDANCE ON PROCEDURES IMPLEMENTING HOFFMAN PLASTIC DECISION
Immigrants' Rights Update, Vol. 16, No. 5, September 10, 2002

The National Labor Relations Board (NLRB) has issued guidance to its regional and field offices on how to handle cases involving workers who may be undocumented, in light of the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB (122 S. Ct. 1275 (2002). The guidance was issued in the form of a memorandum from the NLRB's general counsel, who prosecutes violations of the National Labor Relations Act (NLRA), to the agency's regional offices.

Issued on July 19, 2002, the memo reaffirms that all workers "enjoy protections from unfair labor practices and the right to vote in NLRB elections without regard to their immigration status" and that investigations into alleged violations of the NLRA should begin with the "presum[ption] that employees are lawfully authorized to work." In the guidance, the general counsel states that questions concerning an employee's immigration status do not belong in the initial phase of the investigation, which concerns only liability on the part of the employer. Rather, immigration status questions should be left to the NLRB compliance phase. (Compliance is a separate proceeding that involves only the determination of remedies, and it takes place after the NLRB has established that the employer violated the worker's rights.) Accordingly, the regions have been instructed to "continue to object to [an employer's] attempt to elicit evidence concerning an employee's asserted undocumented status in order to escape unfair labor practice liability." The general counsel also made clear that immigration status is irrelevant to the determination of which employees are eligible to vote in a union election.

Furthermore, the guidance directs agents not to conduct investigations into employees' immigration status on their own initiative. Instead, agents are to consider questions concerning immigration status only when the "employer establishes that it knows or has reason to know that a discriminatee is undocumented." According to the general counsel, "a mere assertion is not a sufficient basis to trigger such an investigation." Once the employer makes that showing, the agent investigating the charge should ask the party that filed the complaint and/or the employee to respond to the employer's evidence.

With respect to back pay—the remedy at issue in the Hoffman case—the NLRB's guidance instructs agents not to seek it once evidence establishes that an employee was not authorized to work during the back pay period. However, following the lead of the U.S. Dept. of Labor, the general counsel concluded that Hoffman does not preclude the award of back pay "for work previously performed under unlawfully imposed terms and conditions, [such as] a unilateral change of pay or benefits." The general counsel has not yet decided whether back pay is available to a worker who was demoted to a lower-paying position in violation of the NLRA.

In cases where back pay is not available, the general counsel encouraged regional offices to consider pursuing other types of remedies, including nontraditional remedies, particularly tailored to the facts of each case. Importantly, "in most cases, Regions should seek to remedy unfair labor practices against undocumented workers by requiring the [NLRB] notice [determining that the employer violated the NLRA] to be read to employees." The NLRB's standard practice has been to require that the notice simply be posted on a bulletin board or another area accessible to employees.

Despite the Supreme Court's decision in Hoffman, the NLRB general counsel found that a conditional reinstatement order is still a viable remedy in cases where an employer knowingly hired an undocumented worker. The NLRB's order of conditional reinstatement was affirmed by the Second Circuit in A.P.R.A. Fuel Oil Buyers Group, Inc. v. NLRB, 134 F.3d 50 (2d Cir. 1997), a case involving an employer who knowingly hired undocumented workers. In A.P.R.A., the NLRB ordered reinstatement conditioned on the workers' ability to establish their work authorization and to comply with the I?9 employment eligibility verification requirements at the time of returning to work. Under A.P.R.A., workers must be given a reasonable period of time to adjust their status in order to comply with the I-9 process. In cases where the employer did not knowingly hire the undocumented worker and the employer can show that the worker would not have been hired had the employer known about her lack of work authorization, then the reinstatement remedy is not available. This holds true even if the worker is authorized to work at the time the NLRB issues the reinstatement order. While the general counsel found that an order of conditional reinstatement is still appropriate in some cases, the memorandum also states unequivocally that back pay is no longer available even in an A.P.R.A.-type scenario, where the employer knowingly hired undocumented workers.

Finally, the general counsel left open the possibility that remedies traditionally considered "extraordinary," and normally sought only where an employer is found to have egregiously violated the NLRA, may be available to undocumented workers. For example, unions may be granted access to the worksite during organizing campaigns in cases involving unfair labor practices. The general counsel's memorandum, "Procedures and Remedies for Discriminatees Who May Be Undocumented Aliens after Hoffman Plastic Compounds, Inc.," can be found at www.nlrb.gov/gcmemo/gc02-06.html.

NLRB GC-02-06 (July 19, 2002).