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The U.S. Department of Homeland Security recently started authorizing more raids on workplaces it suspects include undocumented workers—and employers, not the workers, are being charged with breaking the law.

That’s why employers are working harder than ever to make sure workers’ employment eligibility documents are in order.

At the same time, the National Labor Relations Board (NLRB) is taking a more aggressive stance, pushing employers to settle unfair labor practice cases and ordering them to rehire employees terminated for exercising National Labor Relations Act rights.

But what happens when those fired workers are actually ineligible to work?

Recent case: C&C Roofing faced three unfair labor practice charges, all filed by a union. The NLRB and the company agreed to settle and reinstate employees whose terminations had led to the unfair labor practices charges.

When it came time to rehire the workers, however, C&C said it couldn’t reinstate some because it now believed they didn’t have legitimate employment eligibility documents.

The court said that the way to challenge individual reinstatements would be to bring the illegitimate documents to the NLRB. The 9th Circuit reasoned that a federal agency would not require an employer to rehire those who might be in the country illegally—but would require some sort of proof that was the case.

The company couldn’t simply ignore the agreement it had made to settle the case. (NLRB v. C&C Roofing, No. 08-70335, 9th Cir., 2009)


Final note: Some courts have ruled that employers must pay employees for work performed even if they weren’t legally authorized to work. If discharged, however, they would not be entitled to back pay for time not worked. That’s because that sort of back pay is predicated on being available for work—something someone without proper documents is not.

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