If you’re looking for positive employer news in anything relating to the National Labor Relations Board, you’re in the wrong place.

For nearly a decade, the Immigration Reform and Control Act has been interpreted by courts in this country to deny certain recovery (specifically, back pay) to undocumented aliens who are found to have been discriminated against for their union activities in violation of the National Labor Relation Act.  Recently, however, the Obama NLRB – in a timely election-year, two-to-one decision – made it more difficult for employers to utilize this defense to such a claim.

In Flaum Appetizing Corp., 357 NLRB No. 162, the employer discharged seventeen (17) employees who were determined to have been engaged in protected concerted activity.  When the Board set forth its conclusion on what each former employee was owed in prior wages in a back pay proceeding, the employer objected on the ground that the former employees were not entitled to any back pay because they were undocumented aliens, and because they perpetuated a fraud on it by obtaining employment as a result of providing false documentation in violation of the IRCA.

To support its position, the employer served subpoenas on each former employee asking for the production of various documents which would support the employer’s position:  passports, permanent resident cards, registration cards, driver licenses, government issued photograph identification cards, social security cards, birth certificates, marriage licenses, voter registrations, naturalization certificates, all documents and identification submitted to the employer during the employment process etc…

Unfortunately, despite the Board’s acknowledgment that fraud in obtaining employment was an affirmative defense which an employer must plead and prove, it held that this defense may not be pled in a back pay proceeding unless the employer also can articulate the factual basis for the application of these defenses to each former employee without the aid of any form of compulsory investigation, such as using a subpoena of documents or examination of witnesses to support these defenses. Put another way, an employer must be able to cite the factual basis for these defenses without the help of discovery in order to use them, according to the Board.

This ruling clearly puts any employer that learns for the first time of employee falsification at the employee’s unfair labor practice proceeding in a bind, and the end result can be a significant monetary award of back pay for employees who violated the IRCA.  Employers need to take several lessons from this unfortunate result:     

First, do not accept at face value even what appears to be proper pre-employment documentation from your new hires.  Do a thorough investigation into the veracity of what you’re provided right off the bat.  Second – and failing success with the first step – be sure to develop as much as you can at any future unfair labor practice hearing a factual and documentary record which might be needed in a later back pay proceeding should the result of the ULP proceeding be adverse.

Allison Williams focuses her practice in the area of labor and employment law, litigation, and higher education law. Ms. Williams' practice includes cases pending in state and federal courts, as well as actions pending before the West Virginia Public Employees Grievance Board, the West Virginia Human Rights Commission, and the Equal Employment Opportunity Commission.
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