The NLRB issued a new guidance on remedies for immigrant workers on May 4, 2012.  The new guidance states that where the employer has no evidence that employees are undocumented (or unauthorized to work), the employer is prevented from using the Board processes to “launch a fishing expedition” into workers’ immigration status. 

If an employer wants to raise the defense that a worker is undocumented and therefore not entitled to backpay (in the compliance phase of the Board hearing), the Board is required to demand that the employer present a “full accounting of evidence” that the employer expects to present to show that the worker is not authorized to work.  If the evidence is not sufficient, the Board can strike the employer’s affirmative defense.

In addition, the new guidance states that employer offers of reinstatement cannot be conditioned on re-verification of work authorization documents.  This means that an employer who fires a worker because of union activities and later offers reinstatement, the employer cannot require the fired worker to complete a new I-9 form and present work authorization and identity documents for verification as a condition to the reinstatement.

Worker’s immigration status continues to be irrelevant during the investigation phase and liability phase of an unfair labor practice charge.

For more information contact Monica Guizar and Conchita Lozano-Batista.

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