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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.