Wyatt Employment Law Report


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NLRB Rules For Employer Finding No Obligation To Reinstate Or Pay Backpay to Illegal Aliens

By Edwin S. Hopson

On August 09, 2011, the National Labor Relations Board issued its decision in Mezonos Maven Bakery, 357 NLRB No. 47 (2011), in which it held that the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137(2002) was binding upon the Board in deciding that it lacked the authority to award backpay to undocumented immigrant workers whose rights under the National Labor Relations Act had been violated.  This was found to be so even if the employer knew at the time the undocumented workers were hired that they lacked employability with the meaning of the Immigration Reform and Control Act of 1986 (IRCA).

On February 12, 2003, seven employees who worked for Mezonos Maven Bakery were discharged after complaining about treatment they were receiving from a supervisor.  Charges were filed alleging a violation of the Act over this retaliation for engaging in protected concerted activity.  The case was settled but the employer later refused to offer reinstatement or backpay citing the fact that the seven employees were undocumented workers.  An NLRB Administrative Law Judge ruled against Mezonos Maven Bakery and it appealed to the Board, which ruled for the Bakery.

However, two of the NLRB’s three member panel, Chairman Liebman and Member Gaston, criticized the Supreme Court’s 2002 ruling, stating “in addition to the obvious failure to make employee-victims whole the Act’s enforcement is undermined, employees are chilled in the exercise of their Section 7 rights, the workforce is fragmented, and a vital check on workplace abuses is removed.”  Member Hayes refused to join in that criticism stating “it is the Board’s role to enforce this controlling precedent in adjudicatory proceedings without critical comment.  It is the role of Congress to determine whether to alter the law in response to the Court’s decision.”

Liebman and Gaston also postulated that they “would be willing to consider in a future case any remedy within our statutory powers that would prevent an employer that discriminates against undocumented workers because of their protected activity from being unjustly enriched by its unlawful conduct.”  Hayes also refused to speculate about future other possible remedies.


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No Right to Jury Trial in WARN Act Cases

By George J. Miller

On February 16, 2011, the U.S. Court of Appeals for the Sixth Circuit (which hears appeals from federal district courts in Michigan, Ohio, Kentucky, and Tennessee) held that former employees who sue for violations of the Worker Adjustment and Retraining Notification Act (WARN) do not have a right to a jury trial.  In this case, a class of former employees of Emery Worldwide Airlines sued the company, claiming that Emery violated their rights under WARN by not giving them the 60 day notice required by the law before they were permanently laid off.  After a four day trial conducted by the court without a jury, the trial court ruled against the employees, holding that they were not entitled to a 60 day notice prior to Emery permanently ceasing operations. 

The employees appealed both the decision that they were not entitled to a 60 day notice and the trial court’s earlier decision that they were not entitled to a jury trial.  The Court of Appeals affirmed the trial court on both issues.  With respect to the jury trial issue, the Court of Appeals agreed with the trial court that the Act’s remedy for violations–back pay and benefits for up to 60 days–is more like restitution for wrongfully withheld pay than it is like legal damages.  Such restitutionary or “equitable” remedies are traditionally reserved to courts, not juries.  An additional basis for the appellate court’s decision was a provision in the Act which allows the trial court to reduce the amount of liability in cases in which the trial court finds that, despite the violation, the employer had a reasonable and good faith belief that it was complying with the Act.  The Court of Appeals reasoned that this provision of the law places the entire damage award within the discretion of the trial judge. 

 The upshot of this decision is that employers in states in the Sixth Circuit need not worry about the prospect of a jury trial in WARN cases.  An added benefit of the decision is the emphasis on the trial judge’s authority to reduce damages and penalties when employers make reasonable, good faith efforts to comply with the Act.