NLRB Orders Reinstatement of Undocumented Workers Terminated in 2003

The NLRB ordered a bakery to reinstate – but not remit back pay – to several undocumented workers that it fired in 2003 for participating in protected labor activities. Each employee’s reinstatement is conditioned on the employee showing that he or she is allowed to work in the U.S.

The employers escaped back pay liability thanks to a 2002 U.S. Supreme Court ruling that blocked the NLRB from issuing back pay to employees who were undocumented immigrants at the time they were fired. Accordingly, the NLRB views reinstatement as the only remedy available for providing relief to the terminated employees and deterring future unfair labor practices.

The company had just 14 days to offer the workers their old jobs or an equivalent position, but the NLRB ordered that the employees be given a “reasonable time” to provide the company with a valid I-9 form and documentation of their legal status. Wouldn’t requiring both parties to comply within 14 days or a reasonable time be more equitable? Shouldn’t the Board strive for fairness?

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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