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By
Monica Guizar
Employment Policy Attorney
(REVISED June 12, 2008)
An administrative law judge (ALJ) in New York has ordered a
back pay award to seven workers who had been fired by their employer,
Mezonos Maven Bakery, for engaging in concerted activity by complaining
together about their supervisor’s behavior towards them. Some of the
seven workers had been employed by Mezonos for nearly 10 years. During
this time, the employer had not asked some of them to provide employment
authorization documents and had never completed I-9 employment
eligibility verification forms for any of them.
The workers filed an unfair labor practice charge with Region 29
of the National Labor Relations Board (NLRB), which then issued a
complaint against Mezonos charging that the employer’s action violated
the National Labor Relations Act. The parties entered into a stipulated
settlement, and the NLRB issued a decision and order directing Mezonos
to offer unconditional reinstatement and make the workers whole for any
lost wages.
Under the order, any disputes over the amount of wages owed
were subject to a compliance proceeding. The regional director issued a
compliance specification laying out the back pay amounts owed for each
of the seven employees. Mezonos submitted an answer to the
specification, stating that it could not offer reinstatement or pay back
pay to the seven workers because it believed that they were undocumented
and that therefore the precedent set by the U.S. Supreme Court in
Hoffman Plastic Compounds, Inc. v. NLRB, 437 U.S. (2002),
precluded any offer of reinstatement or back pay award. (For a summary
of the decision in Hoffman, see “Supreme
Court Bars Undocumented Worker from Receiving Back Pay Remedy for
Unlawful Firing,” Immigrants’
Rights Update, Apr. 12, 2002.)
The issue before the ALJ was whether the workers were
entitled to back pay, given that their employer, assuming that they were
undocumented, hired and retained them in violation of the immigration
statute’s provision that requires employers to verify the employment
eligibility of new hires. The ALJ had to decide whether the workers
were entitled to back pay given that there was no evidence in the record
that they were undocumented or that they had engaged in fraud or
criminal activity
In awarding back pay to the workers, the ALJ distinguished
the Hoffman decision and stated that the “two essential facts in
Hoffman” are absent in this case. Those two facts are “(a) that
Castro [the original complainant in Hoffman] criminally violated
[the Immigration Reform and Control Act (IRCA)] by presenting fraudulent
documents to his employer and (b) that employer Hoffman did not violate
IRCA but hired Castro with no knowledge that he was undocumented.” The
seven fired Mezonos workers never presented false documents to their
employer and did not violate IRCA, but the ALJ found that their employer
had violated IRCA “by knowingly hiring them and continuing their
employment without evidence that they were documented.”
The ALJ further found that the Supreme Court’s concerns that
an award of back pay to the complainant in Hoffman would “condone
criminal conduct by an employee” and that the employee was the
“wrongdoer” are not applicable to the facts in the Mezonos case. Here
the “wrongdoer” is the employer, who “should not be permitted to evade
its liability for back pay,” the ALJ found. He therefore ordered a back
pay award and found that the award does not conflict with federal
immigration law or with the Supreme Court’s decision in Hoffman.
NILC is co-counsel in this matter, helping to represent the
seven workers. The employer, Mezonos Bakery, filed exceptions to the
ALJ’s decision and the matter is pending before the NLRB.
Mezonos Maven Bakery,
Inc. and Puerto Rican Legal Defense and Education Fund, 29-CA-25476,
Steven Davis, ALJ (Nov. 1, 2006).
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