Employers Beware of the Burden of Claiming Employees are Not Entitled to Back Pay Based on Their Immigration Status in an NLRB Hearing

Contributed by Sara Zorich

The National Labor Relations Board (NLRB) has raised the bar making it more difficult for employers to defend NLRB claims for back pay based on the affirmative defense that the employee is not authorized to work in the United States.  The NLRB recently held that an employer must articulate with particularity their basis for claiming that an employee is not entitled to back pay based on the employee’s immigration status and general assertions are insufficient to satisfy the employer’s burden.  (See Flaum Appetizing Corp et. al., 357 NLRB No. 162, Dec. 30, 2011).  In Flaum, the majority held that the employer was not entitled to discovery, the ability to subpoena documents or examine witnesses on the immigration status of the employees unless and until the company had submitted specific factual evidence in support of its position that the employees were not authorized to work in the United States.  Thus, employers should be aware that the NLRB will most likely require the employer to proffer extensive evidence of the employee’s alleged undocumented status prior to entertaining discovery on the issue.