This past week, the National Labor Relations Board (NLRB) ordered a bakery to reinstate several undocumented workers after years of litigation. Mezonos Maven Bakery, 362 NLRB No. 41 (2015).  Since it is unlawful to employ undocumented workers, the NLRB conditioned the reinstatement on the employees’ ability to satisfy the Immigration Reform and Control Act (IRCA) Form I-9 requirements—including providing documents to show work authorization.  

The dispute between the employees began when the bakery terminated several employees after they had complained of wages and working conditions.  In 2005, the NLRB found the employees’ rights had been violated and ordered the bakery to make the employees “whole,” and offer “unconditional reinstatement” along with back pay.  The bakery challenged this decision in compliance proceedings.  Under the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the bakery argued, unauthorized workers cannot receive back pay.  The administrative judge distinguished the employee’s situation from Hoffman.  In Hoffman, the employees had presented fraudulent documents to work, while there was no evidence the bakery employees had done so. 

In 2011, the NLRB reversed the administrative judge’s decision, and found Hoffman precluded back pay for undocumented workers regardless of how they obtained their job.  The Second Circuit confirmed the NLRB’s decision, finding the employees could not receive back pay, but remanded the matter to the NLRB to determine if the employees could be reinstated. 

On remand, the NLRB found conditional reinstatement was an appropriate remedy and ordered the bakery to reinstate the employees if the employees could comply with IRCA’s Form I-9 requirements.  To support its decision, the NLRB relied on Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), which sanctioned conditional reinstatement for undocumented workers.  Although Sure-Tan pre-dates IRCA’s Form I-9 requirements, the NLRB found conditional reinstatement to be consistent with IRCA and Hoffman.  It remains to be seen if further litigation will result if the employees are unable to satisfy IRCA’s Form I-9 requirements when reinstated.