NLRB Issues Guidance on Compliance Cases

The National Labor Relations Board (NLRB) issued guidance on May 4, 2012, to regions for investigating and litigating compliance issues under Flaum Appetizing Corp., 357 NLRB No. 162 (Dec. 30, 2011). The memo acknowledges that the Supreme Court in Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) concluded that the Immigration Reform and Control Act of 1986 (IRCA) bars the NLRB from awarding backpay to any individual who was not legally authorized to work in the United States during the backpay period. However, the NLRB noted that an employee’s work authorization status generally is irrelevant to the merits of an unfair labor practice compliant; it only becomes a triable issue at the compliance stage. Nonetheless, the NLRB memo states, a respondent “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.” 

In Flaum, the NLRB 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.” In the compliance phase, the NLRB memo says, regions should demand a full accounting of evidence upon which a respondent intends to rely to assert that employees are ineligible for backpay under Hoffman Plastics. 

The NLRB memo also notes, among other things, that before Flaum, an employer was permitted to require discriminatees to complete the appropriate portion of the I-9 employment authorization verification form and submit appropriate documentation as a condition of reinstatement. “A reinstatement offer will no longer be considered valid if it is conditioned on re-verification of employment status,” the NLRB memo states.