Reinstatement and Backpay Remedies
for Discriminatees Who May Be Undocumented Aliens
In Light of Recent Board and Court Precedent
OFFICE OF THE GENERAL
|MEMORANDUM GC 98-15
||December 4, 1998
TO: All Regional Directors,
Officers-in-Charge and Resident Officers
FROM: Fred Feinstein, General Counsel
SUBJECT: Reinstatement and Backpay Remedies for
Discriminatees Who May Be Undocumented Aliens In Light of Recent Board and Court Precedent
This memorandum sets forth guidance under recent Board and
court decisions for determining the propriety of the Board's full reinstatement and
backpay remedies for discriminatees who an employer contends or the Region knows to be
"undocumented" aliens. General Counsel Memorandum GC 88-9, dated September 1,
1988, is superseded by the instant Memorandum only where it specifically conflicts with
The Immigration Reform and Control Act of 1986
("IRCA") provides for civil and criminal penalties against any person who
knowingly hires or continues to employ an alien who is or has become ineligible to work in
the United States (an "undocumented" individual). 8 U.S.C. Sec. 1324a(a). Thus,
employees are required to attest and employers required to verify that employees are
eligible to work in this country. 8 U.S.C. Sec. 1324a(b). In practice, an individual can
satisfy this requirement by completing an INS Form I-9 at or around the time of hire. The
applicant uses this form to establish both his or her identity and work authorization.
Once the individual has complied with this verification requirement upon hire, the
employer may not demand "more or different documents" from the individual in
order to reverify his or her work authorization status, unless it learns that the employee
has become unauthorized. 8 U.S.C. Sec. 1324b(a)(6). Significantly, an employer may not
reverify the work authorization status of any employee who is "continuing in his or
her employment and has a reasonable expectation of employment at all times,"
including any employee who has been reinstated pursuant to an order of any court,
arbitrator or administrative law judge.2
In A.P.R.A. Fuel Oil Buyers Group,3 the
Board reconciled Congress' intention under the National Labor Relations Act of sanctioning
employers which unlawfully discriminate against statutory employees with its goal under
IRCA of deterring the unlawful employment of undocumented aliens in the United States. The
employer therein hired two undocumented applicants even though both individuals admitted
at the time of hire that they were legally ineligible to work in the United States. The
employer subsequently discharged both employees because of their union activities.
Finding that the employer terminated the employees in
violation of Section 8(a)(3), the Board extended to them the full protection of the Act
and its remedies in their entirety with the express intention to eliminate an unscrupulous
employer's incentive to thwart the Act's goals simply by hiring undocumented aliens.
Mindful, however, that the discriminatees had already admitted that they were ineligible
to work in the United States, the Board conditioned reinstatement "on their
satisfaction of the normal verification of eligibility requirements prescribed by
IRCA."4 Since IRCA prohibits an employer from continuing to employ any
individual who it knows to be ineligible for work, the Board ordered the employer to
extend an offer of reinstatement only after the discriminatees presented to the employer
"within a reasonable time" completed INS Form I-9s sufficient to establish their
work eligibility.5 The Board stressed that it imposed this conditional, rather
than unconditional, reinstatement remedy solely because the employer knew at the time of
hire that the discriminatees were ineligible for employment and, thus, would be liable for
sanctions under IRCA if it were to reinstate the discriminatees unconditionally. The Board
explicitly acknowledged, however, that, "[i]n the ordinary case, when the IRCA
requirements have been met, there may be no need for this additional condition."6
Although the Board noted that employers may raise questions "with respect to the
continued eligibility of individuals for employment," it stressed that employers may
do so only "under conditions that comply with the provisions of IRCA."7
Secondly, the Board awarded the discriminatees backpay until such time as either the
employer reinstated them subject to IRCA's verification requirements or the employees were
unable to establish after a "reasonable time" that they were authorized to work
in this country.8
The Second Circuit enforced the Board's conditional
reinstatement and backpay remedies in their entirety. The court noted that the Board's
decision enjoys the dual advantage of providing relief to the discriminatees commensurate
with their right to work in this country, while it "felicitously keeps the Board out
of the process of determining an employee's immigration status."9
Pursuant to A.P.R.A., Regions should seek an
unconditional reinstatement order absent an affirmative showing by the respondent that a
discriminatee is unauthorized to work in this country. Upon such a showing, the
discriminatee's conditional, rather than unconditional, reinstatement is appropriate.10
In a subsequent case, Hoffman Plastic Compounds, Inc.,11
the Board clarified an issue which it had explicitly left open. The employer in Hoffman
hired and subsequently unlawfully terminated an employee without ever having reason to
know that the discriminatee had fraudulently represented to it that he was eligible to
work in the United States; it first learned of the employee's unauthorized status during a
compliance hearing. Citing to dictum in A.P.R.A.,12 the Board applied
well-settled law which serves to preclude the reinstatement of any employee who engages in
unprotected conduct for which the employee would have been discharged and, furthermore, to
toll backpay on the date the employer first learns of the misconduct.13
Concluding that the record established that the employer attempted to comply with IRCA
when it hired the discriminatee and finding no evidence that the employer knowingly hired
any other employee in violation of IRCA, the Board declined to order the discriminatee's
reinstatement and tolled backpay as of the date the employer first acquired knowledge that
the employee had used fraudulently procured identification to gain employment.14
The foregoing cases raise the further issue of how and
under what circumstances can an employer initially question a discriminatee's continued
eligibility for employment. We conclude that evidence which an employer may seek to
introduce at an unfair labor practice proceeding pertaining to a discriminatee's work
authorization status is irrelevant to the underlying question of the employer's liability
under the Act and should not be admitted.15
We also conclude that questions concerning reinstatement
are only appropriately raised in a compliance proceeding.16 Such evidence
concerning a discriminatee's work authorization status is relevant at compliance
proceedings only if the respondent has a reasonable basis independent of the compliance
proceeding for knowing that the discriminatee cannot lawfully work in the country.17
In this regard, we would object to the compliance proceeding being used as a fishing
expedition to try to determine whether someone is unlawfully in the country. Counsel for
the General Counsel should object to questioning concerning a discriminatee's work
authorization status and, if necessary, should take a special appeal to the Board on any
adverse ALJ ruling. In such circumstances, the Region should argue that there is no IRCA
requirement to reverify the work authorization status of a continuing employee, such as a
discriminatee subject to a Board reinstatement order. Further, where the purpose of the
questioning is to discriminate against an individual because of his or her citizenship or
national origin (i.e., the question of the employee's immigration status would not have
been asked except for his or her citizenship or national origin), the Region should
contend that the questioning is in violation of IRCA's anti-discrimination provisions as
set forth at 8 U.S.C. Sec. 1324b(a)(6).
Cases which present issues not resolved by this memorandum
should be submitted to the Division of Advice.
Washington - Special
Regional - All Professionals
Release to the Public
1 Thus, the treatment of
"grandfathered" employees (i.e., employees hired on or before November 6, 1986)
in Memorandum GC 88-9 remains in effect.
2 8 C.F.R. Sec. 274a.2(b)(1)(viii).
3 320 NLRB 408 (1995), enfd. 134 F.3d 50 (2d
4 Id. at 415.
6 Id. at 415 n.39.
8 Id. at 416.
9 NLRB v. A.P.R.A. Fuel Oil Buyers Group,
134 F.3d at 57.
10 Regions should submit to Advice cases in
which a respondent makes this contention.
11 326 NLRB No. 86 (September 23, 1998).
12 See A.P.R.A., 320 NLRB at 416 n.44.
13 Hoffman, 326 NLRB No. 86, slip op. at
2, citing Marshall Durbin Poultry Co., 310 NLRB 68, 70 (1993), enfd. in pert. part
39 F.3d 1312 (5th Cir. 1994), and John Cuneo, Inc., 298 NLRB 856, 856-57 (1990).
14 Hoffman, 326 NLRB No. 86, slip op. at
15 Thus, a discriminatee's work authorization
status is irrelevant where the employer seeks to litigate this issue even though it did
not rely on that status when it terminated the employee. See, e.g., Victor's Cafe
52, 321 NLRB 504, 504 n.3, 514-15 (1996) (discriminatees' work authorization status
irrelevant to their unlawful discharge where employer did not verify their status until
after they engaged in union activity). However, such evidence would be relevant in a mixed
motive case. Regions should submit these cases to Advice.
16 Id. at 504 n.3; Intersweet, Inc.,
321 NLRB 1, 1 n.2 (1996), enfd. 125 F.3d 1064 (7th Cir. 1997). See generally Howard P.
Foley Co., 229 NLRB 1167, 1167 n.1 (1977), enfd. 580 F.2d 1053 (9th Cir. 1978)
(evidence that discriminatee should not be reinstated because he engaged in post-discharge
misconduct, excluded from unfair labor practice hearing as irrelevant).
17 Thus, pursuant to Hoffman, should an
employer oppose the Board's normal make-whole remedies because it purportedly learned
after the unlawful discharge that a discriminatee it had hired had actually been
ineligible to work in this country, the Board's normal reinstatement and backpay remedies
remain appropriate unless the employer affirmatively establishes (1) that it had no
knowledge that the discriminatee was unauthorized to work while he or she was in its
employ, and (2) that the employer has not knowingly hired other employees in violation of
IRCA. Where an employer makes such a contention, the Region should submit the case to