Thursday, August 8, 2013
The Second Circuit held in Palma v. NLRB (2d Cir. July 10, 2013), Download 12-1199_Documents that Hoffman Plastic's prohibition on an NLRB award of backpay to an undocumented worker applies even "to aliens who did not gain their jobs through  fraud but who are simply present in the United States unlawfully." The Court also held that Hoffman Plastic "did not foreclose relief in the nature of an order for reinstatement conditioned upon an employee's submission of documentation as required by IRCA," i.e., a "conditional reinstatement" remedy of the sort approved by the Board and the Second Circuit in the pre-Hoffman Plastic case A.P.R.A. Fuel Oil Buyers Group.
The discriminatees refused to answer questions about their immigration status, but the General Counsel decided to proceed on the assumption that the workers were undocumented. The ALJ found that the employer knowingly hired the workers without verifying their work authorization and then fired them after they concertedly complained about abusive treatment. The ALJ concluded that because only the employer violated the immigration law, not the employees (who did not submit any fraudulent documents to obtain employment), the case was distinguishable from Hoffman Plastic (in which the fired employee used false documents to obtain employment without the employer's knowledge). The ALJ thus awarded conditional reinstatement and backpay.
The Board disagreed with the ALJ's legal conclusion, holding that Hoffman Plastic categorically forecloses an NLRB award of backpay to an undocumented worker regardless of which party violated immigration law. The Second Circuit agreed with the Board regarding the unavailability of backpay, but remanded so that the Board could address the matter of whether the fired workers are entitled to conditional reinstatement.