Employers may not terminate employees for attempting to organize, even if the employer believe that the employees are undocumented workers. In early 2009, the Flaum Appetizing Corporation terminated seventeen employees and refused to pay back wages, citing the employees’ undocumented status. The Board held that while Flaum may not be responsible for back pay should it provide evidence that the employees were in fact undocumented. Flaum here failed to provide any such proof, and as a result, it must compensate its former employees for services rendered and activity protected under the National Labor Relations Act.
See Flaum Appetizing Corp., 357 NLRB 162 (2011); see also Merchant’s Bldg. Maintenance, 358 N.L.R.B. 67 (2012) at *5 n.10 (holding that employer could only raise affirmative defense that employees lacked work status with a reasonable basis for the affirmative defense); see also N.L.R.B. Gen. Couns. Mem. OM 12-55 (May 4, 2012) (as a result of Flaum, the N.L.R.B. will no longer consider an employment reinstatement offer valid if it is conditioned on verification of employment status and regional offices “may consider” whether an employer charged in an unfair labor practice proceeding has violated Section 8(a)(1) of the N.L.R.A. by subpoenaing an employee’s work authorization documents as a harassing tactic). 357 NLRB 162 (2011) at *12.
(Development authored by Josh Tucker)