Procedures and Remedies for
Who May Be Undocumented Aliens
after Hoffman Plastic Compounds, Inc.
OFFICE OF THE GENERAL COUNSEL
|MEMORANDUM GC 02-06
||July 19, 2002
TO: All Regional Directors, Officers-in-Charge and
FROM: Arthur F. Rosenfeld, General Counsel
SUBJECT: Procedures and Remedies for Discriminatees
Who May Be Undocumented Aliens after Hoffman Plastic Compounds, Inc.
This memorandum sets forth guidance as to procedures and
remedies concerning employees who may be undocumented aliens in light of the
Supreme Court's recent decision in Hoffman Plastic Compounds, Inc. v. NLRB.1
General Counsel Memorandum GC 98-15, dated December 4, 1998, is modified by this
A. The Supreme Court's Hoffman Decision.
In Hoffman Plastic Compounds, the Supreme Court
reversed enforcement of a Board order awarding backpay to an undocumented worker
whom the respondent hired without knowledge of his immigration status. The Court
found that the Immigration Reform and Control Act of 1986 ("IRCA"),
developed a comprehensive scheme to combat the employment of undocumented
workers in the United States. The Court concluded that IRCA foreclosed the Board
from awarding backpay to an individual who was not legally authorized to work in
the United States during the backpay period inasmuch as the award conflicted
with federal statutes and policies unrelated to the Labor Act. Hoffman at
According to the Court, a backpay award "for a job
obtained in the first instance by [the applicant's] criminal fraud ... not only
trivializes the immigration laws, it also condones and encourages future
violations." Id. at 1283, 1284. Moreover, the Court disallowed backpay
because the discriminatee was unable to comply with Board law requiring him to
mitigate damages by seeking lawful interim employment. Id. at 1284. However, the
Court noted that the Board retains "other significant sanctions" to
deter these discharges. The Court specifically raised, by way of example, notice
posting provisions and cease and desist orders, subject to contempt sanctions
should a respondent fail to comply. Id. at 1285.
B. Prior Law Unaffected by Hoffman.
The Supreme Court's decision in Hoffman Plastic
Compounds has left intact several basic principles set forth in prior court
and Board decisions and GC Memoranda.
1. Coverage of the Act.
The Hoffman offman Court reaffirmed its prior
holding in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 892 (1984), that
undocumented aliens are employees under the National Labor Relations Act. Hoffman
at 1281. Accordingly, it is unassailable that all statutory employees, including
undocumented workers, enjoy protections from unfair labor practices and the
right to vote in NLRB elections without regard to their immigration status.2
2. Liability for Unlawful Discharges.
Because all statutory employees enjoy Section 7 rights, Hoffman
does not change the conclusions set forth in Memorandum GC 98-15 at p. 4, that
an individual's work authorization status is irrelevant to a respondent's
liability under the Act and that questions concerning that status should be left
for the compliance stage of the case.3 The Court
in Hoffman dealt only with a remedial question, and thus, as set forth
above, does not overturn otherwise settled Board and Court law. Thus, Regions
should continue to object to a charged party's attempt to elicit evidence
concerning an employee's asserted undocumented status in order to escape unfair
labor practice liability.
3. Representation Issues.
If an individual is otherwise employed by the employer,
that employee's immigration status is irrelevant to a unit determination or
voter eligibility. In Intersweet, Inc., 321 NLRB 1, 17 and n. 68, the
Board approved a Gissel bargaining order where the ALJ held that there is
no reason "to distinguish between undocumented employees' right to vote in
a representation election and the operative effect of their authorization cards
as a basis for a bargaining order." Similarly, in County Window Cleaning
Co., 328 NLRB 190 n.2, the Board overruled a challenge to an election ballot
based on immigration status.4
4. Reinstatement Rights of Undocumented Discriminatees.
Conditional reinstatement remains appropriate to remedy
the unlawful discharge of undocumented discriminatees whom an employer knowingly
hires. In A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408, 415 (1978), enfd.
134 F.3d 50 (2d Cir. 1997), the Board ordered an employer that knowingly hired
undocumented workers to reinstate them, conditioned on the employees'
satisfaction of IRCA's verification procedure. Thus, the Board ordered the
employer to hold open a reinstatement offer for "a reasonable time" to
allow the employees to establish their work eligibility. The Board explained
that this conditional remedy extends full statutory protection to employees
within IRCA's framework, while eliminating an unscrupulous employer's incentive
to violate the Act.
Because the General Counsel did not seek a conditional
reinstatement order in Hoffman, the Court did not have occasion to pass
on this remedy.5 Accordingly, the Hoffman
decision does not preclude the Board from imposing a conditional reinstatement
order against employers who flout both the Act and IRCA by hiring and firing
known undocumented workers. Because the employee must comply with IRCA prior to
reinstatement, a conditional order satisfies the Court's concern that the Act
not conflict with IRCA's extensive employment verification system.
However, where a respondent, as in Hoffman,
establishes that it would not have hired or retained the discriminatee had it
known of his or her undocumented status during the period of employment, Regions
should refrain from seeking a reinstatement remedy.
C. The Hoffman Decision's Impact on Extant Board
We further conclude, however, that the Hoffman
decision impacts the Regions' practices in several ways.
1. Backpay for Discriminatory Discharges.
The Court clearly held that backpay is unavailable to
remedy the discharge of individuals for the period of time they were legally
unavailable to work in this country. Thus, Regions should not seek a backpay
remedy once evidence establishes that a discriminatee was not authorized to work
during the backpay period.
A question arises, however, as to whether the Board can
order backpay when -- in contrast to Hoffman -- an employer knowingly
hires an undocumented worker. In A.P.R.A. Fuel Oil Buyers Group, the
Board awarded a limited backpay remedy to discriminatees whom the employer hired
knowing of their undocumented status. The Board held that the backpay period
expired when either (1) the employer reinstated them subject to IRCA's
verification requirements, or (2) the employees were unable to establish after a
"reasonable time" that they were authorized to work in this country.
320 NLRB at 415.
The Hoffman decision arguably does not affect the
Board's remedy in A.P.R.A. because the employer in Hoffman was unaware
that the discriminatee was undocumented when it hired him. However, the clear
thrust of the majority opinion precludes backpay for all unlawfully discharged
undocumented workers regardless of the circumstance of their hire. The Court
held that backpay to the discriminatee in Hoffman is contrary to IRCA
policies that criminally sanction aliens who "obtain employment with false
documents." These are policies which the Board has no authority to enforce
or administer. Hoffman, at 1283. Because the Court's considerations
focused on the employee's wrongdoing and apply in equal measure whether or not
the employer knowingly hired undocumented employees, backpay in either event
should not be sought.6
2. Backpay in Non-Discharge Situations.
Hoffman did not address whether backpay is
available in non-discharge situations, such as instances where a discriminatee
has continued to be employed but at unlawfully imposed terms. Examples include a
unilateral change in working conditions or a discriminatory transfer to a lower
We conclude that the Court did not preclude compensation
for undocumented workers for work previously performed under unlawfully imposed
terms and conditions, e.g., a unilateral change of pay or benefits.7 These
situations do not award backpay to undocumented workers for "work not
performed ...." Hoffman, at 1283, but instead make employees whole
for work they have already performed and for which they did not receive full
compensation. The Department of Labor has applied this distinction in deciding
to continue to seek a monetary remedy to compensate undocumented employees for
substandard payments in violation of the Fair Labor Standards Act and the
Migrant and Seasonal Agricultural Worker Protection Act.8
Backpay for an employee who has been unlawfully demoted
into a lower paying position appears to present an open question. Since the
discriminatee is being paid the proper rate for work performed in the new, lower
position, backpay to compensate the employee for earnings he or she would have
made had they remained in a previous position could arguably invoke the Court's
concern about backpay for work "not performed." Alternatively, the
employee continued to be employed, albeit involving different duties from the
discriminatee's prior position, and has no further duty to mitigate. Thus, a
backpay award may not run counter to the Court's rationale. Regions facing this
issue should submit the question for Advice.
D. Board Remedies After Hoffman.
The Court held that its reversal of the Board's backpay
award has no effect on "other significant sanctions." Hoffman,
at 1285. The Court expressly noted that a cease and desist order, subject to
contempt proceedings, remains a significant deterrent against future statutory
violations. Contempt sanctions, of course, are available only for violations of
court-enforced Board orders obtained through litigation or formal settlements.
Accordingly, to provide a meaningful remedy for meritorious unfair labor
practice allegations involving undocumented workers, Regions should seek a
formal settlement in cases involving employers that knowingly hire undocumented
workers and use their work authorization status to threaten and discharge them
in retaliation for their Section 7 activity.
Such an approach is consistent with the policy that formal
settlements "may be warranted where there is a likelihood of recurrence or
extension of the instant unfair labor practices ...." Casehandling Manual
(Unfair Labor Practices), s. 10164.2. In these circumstances, the threat of
contempt sanctions is a valuable and necessary disincentive against this pattern
of statutory violations and formal settlements are an effective and immediate
means of obtaining this deterrent.
Regions should use their discretion to determine the
propriety of formal settlements where an employer unknowingly hires undocumented
workers. Moreover, in most cases, Regions should seek to remedy unfair labor
practices against undocumented workers by requiring the notice to be read to
employees. Notice readings are particularly appropriate under these
circumstances because the Board's ability to reassure remaining employees that
it will protect their Section 7 rights is greatly limited where it cannot
reinstate or seek backpay for undocumented workers.
In addition, Regions should consider the propriety of
other remedies where they are specifically tailored to individual circumstances.
For instance, Regions should seek to compel an employer to continue to assist an
undocumented worker in his or her efforts to become regularized where the
discrimination itself is the employer's discontinuance of its previous support.
If Regions believe that other extraordinary remedies, such as union access to
employees or to employee rosters, may be appropriate to remedy violations during
union organizing campaigns, Regions should submit the case to Advice.
E. Investigative Procedures Affected by Hoffman.
The Hoffman decision clearly established that an
employee's immigration status may become a relevant factor during the compliance
and settlement phases. Proof of a discriminatee's undocumented status, as with
any other defense to reinstatement or backpay, must be established through
evidence proffered by the party making the allegation, and not through a sua
sponte regional investigation. The Hoffman decision does not shift
the burden onto the Board to conduct an immigration investigation in the first
instance. In fact, this issue arose in Hoffman not pursuant to an
investigation, but because the discriminatee admitted on the witness stand
during a compliance hearing that he was undocumented throughout the backpay
Regions have no obligation to investigate an employee's
immigration status unless a respondent affirmatively establishes the existence
of a substantial immigration issue. Regions should begin their analysis with the
presumption that employees and employers alike have conformed to the law. The
law -- IRCA -- protects employees against harassment by an employer which seeks
to reverify their immigration status without cause. A substantial immigration
issue is lodged when an employer establishes that it knows or has reason to know
that a discriminatee is undocumented. Once an employer makes this showing,
Regions should investigate the claim by asking the Union, the charging party
and/or the discriminatee to respond to the employer's evidence. Again, a mere
assertion is not a sufficient basis to trigger such an investigation.
Finally, issues of entitlement to backpay remaining after
such an investigation should be submitted to Advice.
In summary, Regions should follow the following procedure.
- Regions generally should presume that employees are
lawfully authorized to work. They should refrain from conducting a sua
sponte immigration investigation and should object to questions
concerning the discriminatee's immigration status at the merits stage.
- Regions should investigate the discriminatee's
immigration status only after a respondent establishes the existence of a
- Regions should conduct an investigation by asking the
Union, the charging party and/or the discriminatee to respond to the
- If a party raises the issue of an employee's
immigration status at a representation case hearing, the Hearing Officer
should not permit the evidence to be adduced, but rather should allow the
party to present a brief offer of proof.
- Regions should submit a case to Advice if, after its
investigation, questions remain as to whether the evidence establishes that
the discriminatee is entitled to backpay.
- Regions should submit cases to Advice with
recommendations to seek special remedies involving undocumented workers.
Cases which present issues not resolved by this memorandum
should be submitted to the Division of Advice.
Arthur F. Rosenfeld
Regional- All Professionals
Release to the Public
MEMORANDUM GC 02-06
1 122 S. Ct. 1275 (2002).
2 See County Window Cleaning Co., 328
NLRB 190 n.2 (1999).
3 See Intersweet, Inc., 321 NLRB 1, 1,
n.2 (1996), enfd. 125 F.3d 1064 (7th Cir. 1997) (consideration of employer's
contention that discriminatees were not entitled to backpay or reinstatement
because they had no legal right to work in the United States left to the
4 If a party raises the issue of an employee's
immigration status at a representation case hearing, the Hearing Officer should
not permit evidence to be adduced, but rather should allow the party to present
a brief offer of proof. See, e.g., Board's Health Care Rule, Second
Notice of Proposed Rulemaking, 53 Fed.Reg. 33933, 284 NLRB 1528, 1574-1575
(1989) (Hearing Officer to receive offer of proof, rather than evidence, on
"extraordinary circumstances" contentions). An offer of proof will
give the Board the context to reconsider the relevance of the employee's
immigration status, should it choose to do so.
5 Writing for the dissent, Justice Breyer noted
this distinction when he observed that backpay for undocumented workers whom an
employer knowingly hires was not before the Court. Hoffman, at 1287.
6 The Court found further support for its
conclusion that backpay is inappropriate in an undocumented worker's inability
to seek lawful interim employment in order to mitigate damages. Hoffman
at 1284. Regions should submit to Advice cases where an undocumented worker is
able to lawfully mitigate backpay by some measure.
7 However, as with discriminatory discharges,
backpay is unavailable for undocumented employees who are terminated because of
an employer's unlawful unilateral change in terms and conditions of employment.
8 See "Hoffman Plastic Compounds, Inc.
v. NLRB, Questions and Answers," prepared by the U.S. Department of
Labor, at p. 2. See also Liu v. Donna Karan Intern., Inc., No. 00 Civ.
4221, 2002 WL 1300260 (S.D.N.Y. June 12, 2002) (denying request for discovery of
employees' immigration status in defense to FLSA claims; court questioned
whether Hoffman was applicable, because Hoffman Court only
discussed award of backpay for work not performed).