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Implications of U.S. Supreme Court's Decision That NLRB Cannot Order Backpay to Unauthorized Aliens
by John J. Matchulat and Robert C. Divine

The National Labor Relations Act ("NLRA") grants rights and protections to American employees who seek to form and join unions. Employers who discharge, lay off or otherwise discriminate against such employees in violation of the Act can be ordered to reinstate those employees to their former jobs and provide them backpay with interest. Are undocumented aliens, who are not lawfully working in this country, afforded the same rights, protections, and remedies under the Act?

The U. S. Supreme Court on March 27, provided some answers in its decision in Hoffman Plastic Compounds, Inc. v. N.L.R.B., (OO-1595). The NLRB had concluded that Hoffman unlawfully laid off a worker in retaliation for his support of a union during an organizing campaign at the employer's plant. Another later proceeding was conducted by the NLRB concerning the remedy for this violation. During that proceeding the worker first disclosed that he was not properly in this country and had used fraudulent documents to obtain employment at Hoffman. Existing case law established that the employee would not be entitled to reinstatement. The question presented in Hoffman was whether the unauthorized worker was entitled to backpay. The National Labor Relations Board ("NLRB") concluded that the employer was required to award backpay to the unauthorized worker. The Supreme Court reversed and concluded that the NLRB's award of backpay contravened Congress' policy against illegal immigration, and was, therefore, improper. The Court observed that other NLRB remedies such as "cease and desist" orders and required postings of notices at the workplace were sufficient remedies under the circumstances. Accordingly, it now appears that undocumented aliens are afforded the right to engage join or form unions, and are protected by the National Labor Relations Act from discriminatory acts because of those activities, but there are no reinstatement or backpay remedies available to these discriminatees.

So where does an employer stand with respect to the hiring and retaining of undocumented alien workers who then seek to organize into unions? The following offers some insight:

  • Under the Immigration Reform and Control Act of 1986 (IRCA), it is at all times unlawful for an employer to knowingly hire or retain an alien who is not authorized to work in this country.
  • It is illegal for any employees, whether in this country legally or illegally, to use fraudulent documents to establish eligibility for employment, and it is a crime for an employer knowingly to have anything to do with fraudulent documents. Yet, an employer is required to accept for I-9 purposes any qualifying combination of documents "reasonably appearing on its face to be genuine" for I-9 verification purposes.
  • Even undocumented aliens are afforded the right to organize into labor unions at worksites throughout the country under the NLRA.
  • It is technically unlawful for an employer to take retaliatory actions against undocumented aliens in reprisal for the exercise of their rights under the NLRA. In this connection, it would be unlawful for an employer to call in the INS before or after an NLRB election, or threaten to do so, as retaliation for their union activities.
  • If an employer violates the NLRA by retaliating against the undocumented alien because of his protected union activities, the undocumented alien has no right to reinstatement or backpay - remedies typically available to other employees discriminated against under NLRA. The remedies that are available include a "cease and desist" order from the NLRB and a requirement to post notices about the violation, but these remedies are not necessarily strong enough to deter an employer from retaliating against undocumented workers for organizing activity.

    The Court's decision raises a number of additional related issues:

  • Is an employer now provided an incentive to violate INS laws when knowingly hiring and retaining unauthorized aliens because it no longer faces the prospect of reinstatement or backpay, when terminating those persons for engaging in union activities?
  • Are undocumented aliens who obtain work with false documents properly considered "employees" in an employer's workplace, so that an employer whose employees vote for a union could refuse to bargain with that union if it later finds out or suspects that the majority of voters were undocumented aliens?
  • Will the Supreme Court's rationale, that Congress' policy against illegal immigration and unauthorized work by aliens trumps general remedies in the NLRA, also apply to other workplace rights and statutes? For example, the Court's decision could be interpreted to prohibit backpay and reinstatement (including "front pay" awards substituting for reinstatement) when unauthorized aliens complain about civil rights violations, including those under Title VII. The NLRB's position on remedies had been adopted almost entirely by the EEOC in its guidelines and a "Questions and Answers" document, contending that the only limitation on such remedies is against (a) backpay for any period when the worker was out of the country (as opposed to being in the country but unauthorized to work); and (b) reinstatement of undocumented workers who, within a reasonable time after the order, are unable to present work authorization documents to comply with I-9 requirements. The Supreme Court's decision surely calls this EEOC position into question. Conceivably, state courts could follow the decision in attempting to prohibit workers compensation awards.
The Court's holding in Hoffman is expected to generate considerable public debate. Labor unions, which have targeted the undocumented alien workforce for organizing purposes, are expected to denounce the decision and seek legislation to overturn it. Numerous other civil and human rights organizations are likewise expected to assail the Court's holding. In the meantime, it is apparent substantial litigation will follow from the Court's holding.

About The Author

Jack Matchulat is a Labor & Employment attorney at Baker Donelson Bearman & Caldwell, P.C., a full-service law firm with over 250 lawyers and public policy advisors in TN, MS, GA, Washington DC, and Beijing, China. He served as a trial specialist and supervisory attorney for the National Labor Relations Board for 18 years in New York and the Carolinas. He represents management before the National Labor Relations Board, the U.S. Department of Labor, the U.S. Immigration and Naturalization Service and the U.S. Courts of Appeal. He received his B.S. from Cornell University and his J.D. from Valparaiso School of Law. Robert C. Divine is the leader of the Immigration Team of Baker Donelson Bearman & Caldwell, P.C., a full-service law firm with over 250 lawyers and public policy advisors in TN, MS, GA, Washington DC, and Beijing, China. He is the sole author of Immigration Practice (Juris Publishing 2001), a 1,500 page handbook/treatise on all aspects of immigration law that is fully updated and republished in one softbound volume each year. His team handles the full array of immigration matters, including business and family cases, and represents clients in immigration court and administrative and federal court appeals. He was a Morehead Scholar at the University of North Carolina at Chapel Hill and received his J.D. from Vanderbilt University School of Law in 1985. He is the Chair of the Midsouth Chapter (covering 5 states) of the American Immigration Lawyers Association. His Team's new comprehensive web site is He can be reached at