Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, October 26, 2011

Undocumented Workers Not Entitled To Backpay


The NLRB recently held that it lacks the authority to award back pay to undocumented workers even in a case where the employer, rather than employees, violated federal immigration law.

Mezonos Maven Bakery Inc. and Puerto Rican Legal Defense Fund No. 29-CA-25476, 2011 WL 3488558 (N.L.R.B. Aug. 9, 2011).

Mitchell H. Rubinstein

NLRB | Permalink


8USC1324a(h)3)3) Definition of unauthorized alien.-As used in this section, the term "unauthorized alien" means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

Minors without proper employment certificates, asbestos handlers without proper licenses, crane operators without certificates of competency are examples of undocumented workers. My wife, a resident alien certified with the so-called green card, had her purse stolen and, during the time it took her to obtain a replacement card, she was an undocumented worker.

Elevating unauthorized aliens to undocumented worker status is not warranted under either the rules of English or the rule of law. Your right and the right of the NLRB to do so is protected by the first amendment. It is incorrect, misleading, and reminiscent of Orwellian newsspeak, nonetheless.

Justice Breyer in his dissent in Hoffman used the term "illegal-alien employees."

Posted by: joemarino | Oct 27, 2011 3:02:31 PM

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