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Showing 3 posts in Undocumented Workers.

Even when NLRB Orders it, Employers have Little Guidance on Work Authorization Procedures

Quick, employers: you make a job offer to a promising applicant, only to find out that his work authorization papers are less than perfect. He has a social security card and number but something seems… off. (“Is that a letter in the social security number? Is that even possible?”) What do you do? Withdraw the offer? Proceed with the hire and pretend you didn’t see any problem?

The answer is not a simple one and, in the end, the law leaves employers to use their own reasonable judgment. But what is “reasonable,” anyways? Guidance from the government on that question is scant. Add to this the fact that a wrong decision in either direction (i.e., denying employment to an authorized worker or granting employment to an unauthorized one) can lead to all sorts of troubles, and you’ve got a headache at best and, at worst, a potential lawsuit. More ›

Eighth Circuit: Undocumented Restaurant Workers were Entitled to FLSA Protection

—In a decision issued on July 29, 2013, the Eighth Circuit Court of Appeals became the second federal circuit to find that the Fair Labor Standards Act’s minimum wage protections extend to undocumented workers, such that those workers can file wage claims and recover damages. Addressing the issue in the shadow of a 2002 U.S. Supreme Court decision that denied similar awards for back pay to undocumented workers under the National Labor Relations Act, the panel of Eighth Circuit judges refused to extend that case’s reasoning. “The FLSA does not allow employers to exploit any employee’s immigration status,” the judges concluded, “or to profit from hiring unauthorized aliens in violation of federal law.” More ›

NLRB Cannot Award Back Pay to Undocumented Workers Even When Employer Knew of Worker’s Illegal Status

Seven undocumented workers filed unfair labor practice charges against their employer, asserting that their rights under Section 7 of the National Labor Relations Act to be free to bargain collectively regarding working conditions were violated when they were fired after complaining as a group about how a supervisor treated them. The workers settled with the employer. Pursuant to the formal settlement agreement the National Labor Relations Board (NLRB) ordered the employer to reinstate the workers and pay them lost wages. The employer argued that the workers could not be bound by the agreement based on the U.S. Supreme Court’s prohibition on awarding back pay to undocumented workers who violate the Immigration Reform and Control Act (IRCA). An administrative law judge ruled against the employer on the grounds that the employer had violated the IRCA by failing to verify the workers’ work authorization status. On appeal, an NLRB three-member panel unanimously found that because the Supreme Court decision used IRCA-violator-neutral language in its decision, the NLRB had no remedial authority to enforce a back pay award to undocumented workers. However, two NLRB members issued a concurring opinion warning employers that the decision should not be construed as closing the door on other possible monetary remedies for undocumented workers. In light of the concurring opinion, employers should be mindful that, going forward, the NRLB will consider any remedy within the board’s statutory powers to prevent an employer from being unjustly enriched by its unlawful conduct when the employer discriminates against undocumented workers.

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