Outten & Golden: Empowering Employees in the Workplace

A Discussion on Granting Back Pay to Undocumented Workers under the NLRA and the IRCA

November 15th, 2012 | Jon L. Dueltgen

WASHINGTON, D.C. – At a Cornell ILR Alumni Reception on September 20, 2012, I asked NLRB Chairman Mark Pearce, the keynote speaker, about the nearly six-year deliberation and unusual concurrence in Mezonos Maven Bakery, where the NLRB ultimately reversed an Administrative Law Judge’s (ALJ) 2006 decision granting back pay to undocumented workers under the NLRA.  Speaking candidly, Chairman Pearce emphasized the importance of trying to find consensus in the Board’s voice, and the difficulty of reconciling this case with a 2002 Supreme Court holding in Hoffman Plastic Compounds v. NLRB that appeared to prohibit back pay remedies for undocumented workers.  In recent weeks, Chairman Pearce has added that he “had angst over” the decision, and that “the concept of ‘made whole’ … needs to be examined [by us].”

I first became familiar with Mezonos (and a companion case, Imperial Buffet, though the restaurant-employer later went bankrupt) in the summer of 2011 when working as a Judicial Law Clerk for ALJs Steven Davis and Steven Fish—the finders-of-fact for those cases. These were cases where the employer had flouted their legal obligations to verify work documentation under IRCA, and then further violated the NLRA without having to pay out the central remedy of back pay because the workers were undocumented. Given the inequitable outcomes and the perverse incentives, ALJs Davis and Fish argued for a factual distinction of an employer who was doubly-liable under both IRCA and the NLRA from the Hoffman Plastics scenario of a worker fraudulently submitting false documents to an employer following the legal requirements under IRCA.

On August 9, 2011, the NLRB in its 3-0 decision, following some bruising years after the Boeing case, operating without a sufficient quorum, and an unprecedented attempt by House Republicans to defund the independent agency, locked into politically safe position of extending the Hoffman Plastics holding to cover the Mezonos factual scenario, though then Chairwoman Liebman and incoming Chairman Pearce wrote a concurrence critical of this perverse outcome.

Although a re-thinking of “making whole” may provide a more adequate array of remedies than mere back pay, which is the NLRB’s only real stick in ensuring compliance with its rulings, the NLRB had a strong jurisprudential basis in which to use the fault-based analysis to factually distinguish the Mezonos scenario from Hoffman Plastics.  Specifically, there are examples in tort law and contract law, including the “last clear chance” doctrine and exceptions to in pari delicto, which ensure that the fault-ridden party is ultimately held liable even in a legal regime that might suggest otherwise.

As reconsideration was denied by the NLRB in December 2011, if this case ultimately finds its way into the Second Circuit (or, less likely, the D.C. Circuit), it would be worth considering how these arguments for a fault-based analysis might just result in a ruling that helps protect labor rights while still achieving the aims of our national immigration policy. After all, much angst might be resolved by having reconcilable laws work together, rather than interpreting them at cross-purposes.

This article is based on Jon L. Dueltgen’s award winning essay. He placed second place in a writing competition on labor and employment law offered by the College of Labor and Employment Lawyers. An earlier version of the paper also received recognition from the Louis Jackson National Writing competition.

About the Author: Jon L. Dueltgen is a third-year law student at the University of Pennsylvania and a graduate of Cornell University’s School of Industrial and Labor Relations.  His paper on Mezonos Brooklyn Bakery: A Bridge Too Far for Hoffman Plastics was most recently recognized by the ABA/College of Labor and Employment Law National Writing Competition.

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