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Legal Alert: Remedies Available to Undocumented Aliens in the Employment Context

08/06/2009

What is an employer to do when it is ordered to reinstate former employees who are not legally authorized to work in the United States? A recent Ninth Circuit decision announces that the answer is to pay liquidated damages instead. NLRB v. C&C Roofing Supply, Inc. (9th Cir. 2009).

In C&C Roofing Supply, C&C entered into a formal settlement agreement with the National Labor Relations Board (NLRB), embodied in a consent judgment, in which C&C admitted its liability for unlawfully terminating twenty employees for engaging in union activity in violation of the National Labor Relations Act (NLRA), 29 U.S.C. §158 et seq. The settlement provided for reinstatement of the illegally fired workers and payment of a certain amount of back pay for each employee. C&C later refused to reinstate the employees because many of the individuals were unauthorized aliens and rehiring them would violate the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1324a(a)(1), and the Legal Arizona Workers Act, A.R.S. § 23-212. Both of these statutes explicitly prohibit the hiring of unauthorized aliens.

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