Recently, the NLRB Acting General Counsel’s Division of Operations Management issued a memorandum to the Board’s Regional offices (OM 12-55) on how to address an employer’s attempt to litigate the work authorization status of an employee potentially eligible for backpay resulting from an unfair labor practice.
The Supreme Court in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), concluded that the Immigration Reform and Control Act (IRCA) bars the Board from awarding backpay to any individual who was not legally authorized to work in the United States during the backpay period. Nonetheless, the Acting General Counsel’s position is that an employer “may not use the compliance phase as a means to fish for disabling employee conduct under IRCA, i.e., no legal authorization for its employees to work in the United States.” OM 12-55.
In Flaum Appetizing Corp., 357 NLRB No. 162 (December 30, 2011), the NLRB struck the employer’s work authorization-based liability defenses under IRCA to the extent that they were entirely unsupported by evidence. The employee alleged that none of the discriminatees were entitled to work in the United States under IRCA, and thus none were entitled to backpay under Hoffman Plastics. The employer provided no evidence with regard to 11 employees it attempted to disqualify. However, it grounded its allegations concerning four other employees on record evidence elicited at the underlying unfair labor practice hearing, in which the employees testified that the green cards they had presented to the employer at the time of their hire were not their own. Concurrent with the hearing, the employer attempted to uncover disabling evidence on all employees by serving identical subpoenas duces tecum demanding their work authorization and identity documents under IRCA, such as passports, alien registration cards, driver’s licenses, and social security cards.
The Board granted the Acting General Counsel’s pre-trial motion to strike the employer’s affirmative defenses as to the 11 employees who did not testify against their interests. The Board concluded that “IRCA does not require that the Board permit baseless inquiry into immigration status in every case in which reinstatement or backpay is granted.” Id., slip op. at p. 7. Rather, “permitting such re-verification [of work authorization status] … without sufficient factual basis … would invite a form of abuse expressly prohibited by IRCA, and would contravene ordinary rules of procedure and undermine the policies of the Act.” Id. However, the Board allowed the employer to elaborate on its immigration-related defenses as to the four discriminatees who testified that their green cards were not their own. It directed employer to provide an amended bill of particulars to provide adequate elaboration of its claims, without which the administrative law judge would strike the defenses upon a motion by the Acting General Counsel. Id.
The Acting General Counsel’s memorandum instructs the Board’s Regional offices on how to apply Flaum. If an employer invokes lack of authorization status as an affirmative defense to backpay, in a compliance proceeding the Region should demand a full accounting of evidence the employer intends to rely upon in order to assert that employees are ineligible for backpay under Hoffman Plastics. If the employer cites inadequate evidence, including after moving for a bill of particulars, the Region should file a motion to strike the affirmative defenses. If subpoenas duces tecum have been served on discriminatees in a pending compliance proceeding in which such an affirmative defense has been pled, the Region should move to revoke the subpoenas conditionally, subject to a ruling on the motion for a bill of particulars and a review of the bill produced.
Additionally, the Acting General Counsel instructs counsel for General Counsel to object to an employer’s attempt to litigate a discriminatee’s or a witness’s immigration status at the merits phase, and should take a Special Appeal to the Board on any adverse ALJ ruling. Indeed, the Regions may consider whether a charged party commits an independent violation of Section 8(a)(1) of the National Labor Relations Act where, without evidence of an employee’s disabling status, it issues Board subpoenas for the employee’s work authorization documents for purposes of harassing the employee.
Thus, an employer’s ability to litigate an employee’s work authorization status as a defense to back pay is limited; and, in effect, the employer must have independent evidence of a lack of authorization to be able to explore the matter further in compliance litigation. Moreover, the Acting General Counsel underscores that an employer cannot challenge an employee’s work authorization status (as either an alleged discriminate or a witness) as part of a trial on the merits of an unfair labor practice charge.