Reinstatement and back pay for undocumented workers to remedy employer unfair labor practices

Abstract

This article examines the National Labor Relations Board’s (NLRB) remedial power with respect to undocumented aliens in light of the Immigration Reform and Control Act which increased sanctions against hiring and retaining undocumented workers. This article considers the situation in light of employee organizational efforts, and the employers’ tactical response threatening to report undocumented workers supporting the union to the Immigration and Naturalization Service. The author concludes that the NLRB may lawfully order job reinstatement for victims of unfair labor practices as long as they remain in the U.S., or are required to legally re-enter the U.S. prior to reinstatement, and employers may challenge the employee’s presence in the U.S. at the compliance stage. As immigration continues to be the subject of intense debate and legislative activity, this continues to be an important and very controversial labor and employment topic.