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Back Pay Ordered for Unauthorized Workers

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Immigrants' Rights Update, Vol. 21, Issue 6, July 20, 2007

Employer That Knowingly Violated I-9 Requirement Ordered to Pay “Back Pay”

By Monica Guizar, Employment Policy Attorney

(REVISED June 12, 2008)

An administrative law judge (ALJ) in New York has ordered a back pay award to seven workers who had been fired by their employer, Mezonos Maven Bakery, for engaging in concerted activity by complaining together about their supervisor’s behavior towards them.  Some of the seven workers had been employed by Mezonos for nearly 10 years.  During this time, the employer had not asked some of them to provide employment authorization documents and had never completed I-9 employment eligibility verification forms for any of them.

The workers filed an unfair labor practice charge with Region 29 of the National Labor Relations Board (NLRB), which then issued a complaint against Mezonos charging that the employer’s action violated the National Labor Relations Act.  The parties entered into a stipulated settlement, and the NLRB issued a decision and order directing Mezonos to offer unconditional reinstatement and make the workers whole for any lost wages.

Under the order, any disputes over the amount of wages owed were subject to a compliance proceeding.  The regional director issued a compliance specification laying out the back pay amounts owed for each of the seven employees.  Mezonos submitted an answer to the specification, stating that it could not offer reinstatement or pay back pay to the seven workers because it believed that they were undocumented and that therefore the precedent set by the U.S. Supreme Court in Hoffman Plastic Compounds, Inc. v. NLRB, 437 U.S. (2002), precluded any offer of reinstatement or back pay award.  (For a summary of the decision in Hoffman, see “Supreme Court Bars Undocumented Worker from Receiving Back Pay Remedy for Unlawful Firing,” Immigrants’ Rights Update, Apr. 12, 2002.)

The issue before the ALJ was whether the workers were entitled to back pay, given that their employer, assuming that they were undocumented, hired and retained them in violation of the immigration statute’s provision that requires employers to verify the employment eligibility of new hires.  The ALJ had to decide whether the workers were entitled to back pay given that there was no evidence in the record that they were undocumented or that they had engaged in fraud or criminal activity.

In awarding back pay to the workers, the ALJ distinguished the Hoffman decision and stated that the “two essential facts in Hoffman” are absent in this case.  Those two facts are “(a) that Castro [the original complainant in Hoffman] criminally violated [the Immigration Reform and Control Act (IRCA)] by presenting fraudulent documents to his employer and (b) that employer Hoffman did not violate IRCA but hired Castro with no knowledge that he was undocumented.”  The seven fired Mezonos workers never presented false documents to their employer and did not violate IRCA, but the ALJ found that their employer had violated IRCA “by knowingly hiring them and continuing their employment without evidence that they were documented.”

The ALJ further found that the Supreme Court’s concerns that an award of back pay to the complainant in Hoffman would “condone criminal conduct by an employee” and that the employee was the “wrongdoer” are not applicable to the facts in the Mezonos case.  Here the “wrongdoer” is the employer, who “should not be permitted to evade its liability for back pay,” the ALJ found.  He therefore ordered a back pay award and found that the award does not conflict with federal immigration law or with the Supreme Court’s decision in Hoffman.

NILC is co-counsel in this matter, helping to represent the seven workers.  The employer, Mezonos Bakery, filed exceptions to the ALJ’s decision and the matter is pending before the NLRB.

Mezonos Maven Bakery, Inc. and Puerto Rican Legal Defense and Education Fund, 29-CA-25476, Steven Davis, ALJ (Nov. 1, 2006).