The National Labor Relations Board has held on remand from a federal appeals court that “conditional reinstatement is an appropriate remedy where an employer knowingly employed individuals who lack authorization to work in the United States and then discharged them in violation of the N[ational] L[abor] R[elations] A[ct].”  Mezonos Maven Bakery, Inc., 362 NLRB No. 41 (Mar. 27, 2015).

Relying on the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Board originally held that back pay to undocumented workers was not an appropriate remedy for the employees’ unlawful termination for engaging in protected concerted activity.  However, the Board did not address the possibility of ordering the workers’conditional reinstatement.  Several of the former Mezonos undocumented workers appealed. While the U.S. Court of Appeals for the Second Circuit in New York affirmed the Board’s conclusion on back pay, it “remanded the case to the Board for consideration of issues relating to petitioners’ request for conditional reinstatement.”  Palma v. NLRB, 723 F.3d 176 (2d Cir. 2013). (Palma was one of five former Mezonos employees who petitioned the court for review.)

In Sure-Tan, Inc. v. NLRB, 467 U.S. 884 (1984), the Supreme Court held that the NLRB could grant a conditional reinstatement remedy for undocumented workers discharged unlawfully under the NLRA, without running afoul of the Immigration and Nationality Act (INA). [INA was later superseded by the Immigration Reform and Control Act of 1986 (IRCA), but the Board subsequently reaffirmed the propriety of conditional reinstatement in cases involving undocumented workers under IRCA. See A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995)].

On remand, the Board granted conditional reinstatement to Palma and his co-petitioners, relying on Sure-Tan. The Board concluded “conditional reinstatement is the only means available to the Board to provide relief to the discriminatees and the principal means of deterring future unfair labor practices,” because a later Supreme Court decision barred it from awarding back pay to undocumented employees. Hoffman Plastics. 

The Board ordered full reinstatement of the discriminatees to their former positions or “substantially equivalent positions, without prejudice to seniority or other rights and privileges,” provided they were able to complete I-9 forms and present the required documentation to the company “within a reasonable time.”  While the Board inferred from an earlier case that holding a position open for a period as long as four (4) years might be a reasonable, it refused to define that phrase.

The Board also refused to provide guidance on whether an employee who presented fraudulent documents in violation of IRCA is eligible for conditional reinstatement.  The answers to these questions will have to await future cases.