Undocumented Aliens Not Eligible for Backpay

On July 10, 2013 the Second Circuit decided Palma v. National Labor Relations Board, in which undocumented aliens petitioned for review of an order of the National Labor Relations Board denying them backpay. The petitions had been unlawfully discharged by their employer in violation of the National Labor Relations Act (“NLRA”).

The court held that undocumented aliens were not entitled to backpay, and the decision touched upon the interplay between the NLRA and the Immigration Reform and Control Act of 1986 (“IRCA”), the former granting backpay to workers and the latter prohibiting undocumented persons from working.

The Second Circuit relied heavily on the Supreme Court decision Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). The Court had ruled that the IRCA foreclosed relief for an undocumented alien to win back-pay under the NLRA. The Court said,

[A]llowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy…It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.

Petitioners in Palma tried to distinguish their facts from Hoffman in that the plaintiff in Hoffman had falsified his documentation in order to work. However, the Second Circuit held that Hoffman Plastics was controlling law and that the Supreme Court had made clear that because the workers were never permitted to work in the United States, they could not be awarded backpay.