Can The EEOC & NLRB Continue Protecting Alien Workers, Regardless Of Their Immigration Status?

Regardless of the March 2002 Supreme Court holding that back pay cannot be awarded to undocumented workers, in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, No. 00-1595, 2002 WL 1275, the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) have attempted to maintain their stance on protecting immigrant employees, regardless of their immigration status.

Unfortunately, as the Hoffman decision seems to strip both organizations of their enforcement capabilities, their ability to apply their commitment to protecting workers remains to be seen. In fact, following the Hoffman decision, while reinforcing its commitment to protecting workers, the EEOC rescinded a 1999 Enforcement Guidance which advised that federal employment discrimination statutes entitled undocumented workers to monetary relief for discrimination. Then, on July 19, 2002, the NLRB released General Counsel Memorandum 02-06. The Memorandum lays out "procedures and remedies" for aliens who "may be undocumented" and who face workplace discrimination. While the Memorandum attempts to minimize NLRB’s role in investigating the immigration status of a complaining employee, it also reinforces the fact that the organization may no longer have the support of the judicial system in cases involving undocumented workers.

What did the Court say in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board?

In Hoffman, the Supreme Court held that "federal immigration policy . . . foreclosed the NLRB from awarding back pay to [an] undocumented alien who had never been legally authorized to work." As a basis for this conclusion the Court points out that it has "consistently set aside awards [by the NLRB] of reinstatement or back pay to employees found guilty of serious illegal conduct." Hoffman at 1280.

EEOC’s Response

In response to this decision, the EEOC rescinded a 1999 Enforcement Guidance which advised that federal employment discrimination statutes entitled undocumented workers to monetary relief for discrimination. The organization has also attempted to stress its continued commitment to protecting workers. Specifically, the EEOC remains committed to enforcing laws which protect immigrant employees from discriminatory employment practices, regardless of their immigration status. In its June 27, 2002 rescission announcement, the EEOC stated that it "will not, on its own initiative, inquire into a worker’s immigration status" when it enforces employment discrimination statutes." During the announcement, the EEOC spokesperson emphasized the organizations’ continued stance that it is still "illegal for employers to discriminate against undocumented workers." (see below for link to rescission text)

The EEOC has stated that while it will comply with the Hoffman decision in its enforcement activities, it will also continue to pursue claims of discriminatory action from all workers. However, in doing so, the EEOC will also need to ensure that the relief sought will be consistent with Hoffman. To date, the commission has yet to make clear the type of relief it will seek for undocumented workers who have been discriminated against by employers while at the same time satisfying the Hoffman holding.

NLRB’s Response

The July 19, 2002, General Counsel Memorandum 02-06 provides "procedures and remedies" for aliens who "may be undocumented" and who face workplace discrimination. In this document, the NLRB updated guidelines based on the Hoffman holding. In cases where an employee might be undocumented, investigators and hearing officers at NLRB regional offices are instructed as follows:

1. There will be a presumption of employment authorization. As such, investigators are to refrain from conducting a sua sponte immigration investigation and should object to questions concerning the employee’s immigration status.
2. The employee’s immigration status should be investigated only after a respondent (the employer) establishes the existence of a genuine issue.
3. If a party to the complaint raises the issue of an employee’s immigration status at a representation case hearing, the hearing officer should not permit the evidence to be unspecified. A brief offer of proof must be presented by the party making the claim.
4. When a complaint appears to involve undocumented workers, regions are instructed to submit the case to the Advice department with recommendations to seek special remedies involving undocumented workers.

The NLRB advises Regions to review questions of status in the compliance stage of a case. However, once there is evidence establishing the unauthorized status of an employee, a back pay remedy is no longer recommended.

NLRB’s Attempt to Limit the Impact of Hoffman

The Memorandum also notes the fact that the Court did not pass judgment on cases where employers knowingly hire undocumented workers. This specific observation appears to be NLRB’s attempt to limit the scope of the Hoffman holding. In taking this stance, the NLRB stated that many remedies will still be available to the complaining worker, including the remedy of conditional reinstatement against employers who knowingly disregard IRCA and the Labor Act.

Some of the guidelines delineated for regional offices handling situations where an employer knowingly hired an undocumented employee include:

1. Seek formal settlement in cases involving employers that knowingly hire undocumented workers and use their lack of work authorization status and undocumented status to threaten and discharge them in retaliation.
2. Compel employers 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.

Compensation for work already preformed or for unfair demotions may also fall outside of the Hoffman decision. The NLRB also determined that Hoffman does not "preclude compensation for work already performed . . . under unlawfully imposed terms and conditions." According to the NLRB, rather than serving as a punitive remedy in hopes of deterring future violations, this type of compensation makes the undocumented employee whole for uncompensated labor. In the instance of an undocumented worker "demoted" to a lower rate of pay, back pay for the salary that would have been made had the worker kept their previous position is also not necessarily precluded by Hoffman.

Will the NLRB be Successful in its Limited Application of Hoffman?

The NLRB and EEOC stance on questioning the immigration status of workers filing complaints, as well as the NLRB’s restrictive interpretation of the Hoffman decision are likely to lead to a number of new lawsuits and claims by employers who are under investigation and who are ordered to pay back pay to undocumented workers. Furthermore, efforts by various federal agencies (including the INS, the Department of State, and the Social Security Administration) to locate undocumented aliens throughout our nation, may allow the NLRB to hold more employers accountable following their determination that the Hoffman decision did not address and therefore does not apply to employers who knowingly employ undocumented workers.

The NRLB’s stance and guidelines certainly appear to fall within the Hoffman decision as it stands now, however, as employers begin to utilize the decision to challenge NLRB imposed remedies as they relate to undocumented workers, the application of the Hoffman decision by lower and appellate courts will determine its scope. Such a decision will either continue to limit its impact, or depending on the jurisdiction the decision may be applied broadly thereby rendering NLRB’s guidance and attempts to continue protecting all workers, obsolete. The development of NRLB’s procedures and the application of this new decision is definitely one that will impact employers in all sectors as they continue to seek workers at all skill levels throughout the nation to fill the numerous positions that U.S. workers are not willing to accept.

Related Links

• NLRB Memorandum
• Rescission Announcement
• Reaffirmation Announcement

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