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The National Labor Relations Board has held on remand from a federal appeals court that “conditional reinstatement is an appropriate remedy where an employer knowingly employed individuals who lack authorization to work in the United States and then discharged them in violation of the N[ational] L[abor] R[elations] A[ct].”  Mezonos Maven Bakery, Inc., 362 NLRB No. 41 (Mar. 27, 2015).

Relying on the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Board originally held that back pay to undocumented workers was not an appropriate remedy for the employees’ unlawful termination for engaging in protected concerted activity.  However, the Board did not address the possibility of ordering the workers’conditional reinstatement.  Several of the former Mezonos undocumented workers appealed. While the U.S. Court of Appeals for the Second Circuit in New York affirmed the Board’s conclusion on back pay, it “remanded the case to the Board for consideration of issues relating to petitioners’ request for conditional reinstatement.”  Palma v. NLRB, 723 F.3d 176 (2d Cir. 2013). (Palma was one of five former Mezonos employees who petitioned the court for review.)

In Sure-Tan, Inc. v. NLRB, 467 U.S. 884 (1984), the Supreme Court held that the NLRB could grant a conditional reinstatement remedy for undocumented workers discharged unlawfully under the NLRA, without running afoul of the Immigration and Nationality Act (INA). [INA was later superseded by the Immigration Reform and Control Act of 1986 (IRCA), but the Board subsequently reaffirmed the propriety of conditional reinstatement in cases involving undocumented workers under IRCA. See A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995)].

On remand, the Board granted conditional reinstatement to Palma and his co-petitioners, relying on Sure-Tan. The Board concluded “conditional reinstatement is the only means available to the Board to provide relief to the discriminatees and the principal means of deterring future unfair labor practices,” because a later Supreme Court decision barred it from awarding back pay to undocumented employees. Hoffman Plastics. 

The Board ordered full reinstatement of the discriminatees to their former positions or “substantially equivalent positions, without prejudice to seniority or other rights and privileges,” provided they were able to complete I-9 forms and present the required documentation to the company “within a reasonable time.”  While the Board inferred from an earlier case that holding a position open for a period as long as four (4) years might be a reasonable, it refused to define that phrase.

The Board also refused to provide guidance on whether an employee who presented fraudulent documents in violation of IRCA is eligible for conditional reinstatement.  The answers to these questions will have to await future cases.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.