What’s an employer to do when it is ordered to reinstate former employees, but those employees are not legally authorized to work in the United States?  Pay liquidated damages instead, according to the Ninth Circuit’s recent decision in NLRB v. C&C Roofing Supply Inc. 

In C&C, the National Labor Relations Board (NLRB) alleged that the employer unlawfully fired 20 workers for engaging in union activity.  The parties reached a formal settlement that called for reinstatement of the illegally fired workers and payment of specific amounts of liquidated damages to each.  However, the employer then refused to reinstate the employees because many of them were unauthorized aliens and rehiring them would violate the Immigration Reform and Control Act (IRCA) and the Legal Arizona Workers Act, which both prohibit hiring unauthorized aliens. 

The Ninth Circuit solved the dilemma by ordering the employer to pay the agreed-upon liquidated damages, but did not require the employer to reinstate the unauthorized employees.  But how does this case square with Hoffman Plastic Compounds Inc. v. NLRB?  There, the U.S. Supreme Court held 5-4 that the board may not order back pay for unauthorized aliens, despite their firing in violation of federal labor law, because doing so would violate immigration policy expressed in IRCA.  In C&C, the Ninth Circuit dodged that issue by ruling that agreed-upon liquidated damages as part of a settlement do not raise the same issues as back pay ordered by the court, as the employees need not be "available to work" in order to receive liquidated damages.  Don’t be surprised if this one gets appealed up to the Supreme Court for a determination if it really does square with Hoffman.