702-623-6362 
D. The Immigration Reform and Control Act: Congress Sanctions the Employment of Undocumented Workers
The Immigration and Naturalization Act (“INA”) did not prohibit the employment of undocumented workers until Congress amended it by passing the Immigration Reform and Control Act of 1986 (“IRCA”), two years after the Supreme Court decided Sure-Tan, Inc. The IRCA prohibits the employment of undocumented workers and provides both civil and criminal penalties for employers who knowingly hire undocumented workers.
Congress intended IRCA’s employer sanctions to deter illegal immigration by complementing the enforcement of wage and hour laws of the Fair Labor Standards Act (“FLSA”) with respect to undocumented workers. Congress believed that uniform enforcement of worker protection laws with respect to undocumented and legal workers alike would remove the economic incentive for employers to hire undocumented workers over legally authorized workers. The IRCA’s passage was a response to Congress’ perception that programs intended to deter illegal immigration, by targeting the employers of undocumented workers, were not sufficiently effective and that sanctions would provide additional deterrence. The IRCA’s legislative history indicates that Congress intended employer sanctions to complement, rather than replace, enforcement of worker protection laws.
E. Del Rey Tortilleria, Inc. v. NLRB: The Seventh Circuit Prohibits Back Pay Until Proof of Authorization to Work
In 1992, the Seventh Circuit Court of Appeals, in Del Rey Tortilleria, Inc. v. NLRB, also addressed whether Sure-Tan, Inc. precluded the NLRB from awarding back pay where undocumented workers remained in the United States after their unlawful discharge. The court concluded that an undocumented worker who remains in the United States after an unlawful discharge may not receive back pay for his employer’s NLRA violation until he demonstrates that he was legally present and entitled to work. Because NLRA back pay was a remedial measure, the court reasoned that the worker had not suffered any compensable harm unless he could show that he was legally employable during the back pay period. The court interpreted Sure-Tan, Inc. to prohibit undocumented workers from receiving back pay before showing proof of legal employment status.
Although the court decided Del Rey Tortilleria, Inc. after the IRCA’s passage, the illegality of employing undocumented workers was not a factor in the court’s decision to preclude back pay because Del Ray Tortilleria, Inc. hired the workers prior to the IRCA’s passage. The court acknowledged that the IRCA did not control the rights of the parties but noted in dicta that the IRCA would preclude back pay for undocumented workers discharged in violation of the NLRA.
F. NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc.: The Second Circuit Allows Back Pay Pending Authorization for a Reasonable Time
In 1997, the Second Circuit Court of Appeals, in NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., enforced an NLRB order that represented a new NLRB policy regarding the availability of back pay to undocumented workers. In A.P.R.A. Fuel Oil Buyers Group, Inc., an employer violated the IRCA by hiring employees who it knew were undocumented and then violated NLRA section 8(a)(3) by firing the undocumented workers after they supported a union. The NLRB ordered reinstatement contingent upon the workers’ successful application for green cards. The NLRB tailored its back pay award so that it would not conflict with the IRCA by awarding back pay for the period between the unlawful discharge and the conditional reinstatement, or for a reasonable time after the discharge if the workers did not obtain authorization to work. The Second Circuit Court of Appeals held that the IRCA’s passage did not diminish the availability of NLRA remedies. The court relied in part on Congress’ statements that it intended the IRCA to deter employers from hiring undocumented workers. Consequently, Congress did not intend to diminish labor protections then available.
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