By Bruce Buchanan, Siskind Susser

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In Mezonos Maven Bakery, 362 NLRB No. 41 (2015), the National Labor Relations Board (“Board”) considered whether unlawfully discharged undocumented workers may receive “conditional reinstatement.” On remand from the Second Circuit Court of Appeals, the Board concluded that the workers would be entitled to reinstatement on the condition that they prove their eligibility to work in the United States.

This case arose when five employees were discharged from Mezonos Maven Bakery (“Mezonos”) in Brooklyn, New York. They filed a charge with the Board, claiming they were engaged in protected activities under the National Labor Relations Act. Mezonos did not dispute this issue; rather, the company asserted the workers were not entitled to any remedy – back pay or reinstatement – because they were not authorized to work in the United States. Mezonos also asserted that it offered to reinstate five employees if they could provide valid work authorization documents, but none of the employees did.

On the issue of back pay, an Administrative Law Judge ("ALJ") found that the workers were entitled to back pay even though they were not authorized to work. The ALJ was silent as to the issue of reinstatement. On administrative appeal, the Board reversed the ALJ’s decision to award back pay to the workers, citing the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (undocumented workers were not entitled to back pay after their discharge). The Board’s decision was appealed to the Second Circuit U.S. Court of Appeals where it was remanded back to the Board for consideration of the sole issue of reinstatement.

On remand, and in its final order on March 27, 2015, the Board held that conditional reinstatement was appropriate in the Mezonos case. It explained that conditional reinstatement “is an appropriate remedy where […] an employer knowingly employs individuals who lack authorization to work in the United States and then discharges them in violation of the NLRA. Such a remedy is consistent with the policies of both NLRA and Immigration Reform and Control Act (IRCA).” Mezonos at p. 3.

The Board also cited Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), in which the Supreme Court approved of a conditional reinstatement remedy in cases involving unlawfully discharged undocumented workers. The Sure-Tan court explained that making a reinstatement order conditional on compliance with immigration laws eliminates any potential inconsistency with those laws.

Furthermore, the Board cited one of its own prior decisions in A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995) in which it held a conditional reinstatement order (requiring discriminatees to complete an I-9 form and present documentation reflecting work authorization) promoted the policy goals of IRCA and the NLRA.

The Board concluded that conditional reinstatement does not conflict with the U.S. Supreme Court’s more recent decision in Hoffman Plastic because that decision did not prevent reinstatement where it is conditioned on an employee providing proof of work authorization.

The Takeaway
This case highlights the importance of employers verifying their employees’ work eligibility. Although the remedy of a conditional reinstatement may be available for discharged undocumented workers, this issue might never have been litigated if Mezonos had taken proper steps from the beginning to verify the work eligibility of those five employees.