Undocumented Workers Are Employees
It is well established that undocumented workers are “employees”, as that term is defined in the National Labor Relations Act, 29 U.S.C.151, et. seq. (the Act). In essence, the Act protects employees’ rights to engage in concerted (group) activities and union activities.
Whenever it is alleged that a worker has been discriminated against for engaging in concerted or union activities, his/her immigration status is irrelevant to the question of the employer’s liability under the Act. Accordingly, attorneys for the General Counsel of the National Labor Relations Board (NLRB) would object to any questions concerning an alleged discriminatee’s immigration status during the merits stage of an unfair labor practice proceeding (including, of course, the trial).
The NLRB Lacks Authority to Order Reinstatement and Back Pay for Undocumented Workers
It is also well established that the NLRB lacks authority to order back pay and reinstatement for undocumented workers. The Supreme Court has held that such remedies are inconsistent with the policies of the Immigration Reform and Control Act of 1986 – IRCA, 8 U.S.C. 1324, et. seq. Awarding reinstatement and/or back pay to an undocumented worker is beyond the scope of the [NLRB] remedial authority, regardless of whether the employee or employer violated IRCA. 
The Hoffman Defense
During the compliance or remedial stage of an unfair labor practice proceeding, an employer may raise the alleged discriminatee’s lack of work authorization as an affirmative defense (the Hoffman defense). The employer bears the burden of pleading and proving this defense.
It is important to note that an employer may not raise the Hoffman defense in a compliance proceeding as a “fishing expedition.” Whenever an employer raises the Hoffman defense in a compliance proceeding, the NLRB General Counsel will file motions for bills of particulars, seeking the employer’s specific evidence in support of its assertion that the discriminatee is not eligible for work in the U.S. Significantly, by subpoenaing discriminatees’ work authorization documents, without underlying evidence of their immigration status, an employer may commit an unfair labor practice. It is only when the employer has produced objective evidence, independent from the discriminatees testimony, that supports a reasonable doubt regarding a discriminatee’s immigration status, that it may interrogate the discriminatee regarding his/her immigration status during the compliance hearing.
It should be noted that an employer waives its Hoffman defense if it enters into a settlement of the merits with the NLRB, including liquidated damages. Liquidated damages are not prohibited by Hoffman. Moreover, an employer may admit liability but contest the award of reinstatement and/or back pay through a Hoffman defense.
New Remedies for Violations Involving Undocumented Workers
The fact that reinstatement and back pay are not available as remedies does not mean that employers that violate the Act with respect to undocumented workers get off scot-free. It is important to recognize that the Act authorizes the NLRB to provide remedies “as will effectuate the policies of this Act”. The NLRB has commented that it would be willing to consider remedies, within its statutory powers, that would prevent an employer from being unjustly enriched by its unlawful conduct.
It should be expected, therefore, that the current NLRB will consider and implement remedies in cases of unlawful discrimination involving undocumented workers, other than reinstatement and back pay, designed to deter employers from engaging in unlawful conduct. In cases involving discrimination for union activities, such remedies may include requiring the employer to hire applicants referred by the union to replace discharged discriminatees; permitting union representatives to meet with the employees in the employer’s premises and/or providing the union with a list of the employees’ contact information.