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    Reinstatement and Back Pay Remedy for Illegal Discharge

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    Following a representation election campaign in which the union was elected by a majority vote to represent a group of company employees, the employer was found guilty of unlawfully discharging 20 employees during the election campaign for engaging in lawful union organizing activities. The employer entered into a voluntary settlement agreement with the National Labor Relations Board (NLRB), agreeing to reinstate and pay a certain amount of back pay to each illegally discharged person. After the NLRB reviewed approved the proposed voluntary settlement agreement, the employer refused to comply with the terms of the agreement it had negotiated with the NLRB because the company claimed to have evidence that many of the affected individuals were illegal immigrants. According to the employer, if the affected individuals were to be reinstated, the employer would be in violation of both federal (Immigration and Reform Control Act of 1986) and state (the Legal Arizona Workers Act) immigration laws. Both of these laws prohibit the hiring of unauthorized aliens.

    The general counsel of the NLRB petitioned the court for an order enforcing the terms of the voluntary settlement agreement. The employer originally hired these individuals and admitted illegally discharging them during the course of the union organizing campaign. The employer voluntarily entered into the settlement agreement approved by the NLRB and did not at the time raise any claim that the affected individuals were illegal aliens. In order to effectively remedy an unlawful discharge by putting the individual back in the place they should have been absent their unlawful termination, reinstatement to their former job or a substantially equivalent one and compensation in the form of back pay for economic losses suffered as a direct result of the illegal employer action is an appropriate remedy and should be enforced by the court.

    1. As a matter of public policy, should an employer be required to reinstate an unlawfully terminated employee even when that person is an illegal alien? Explain your reasoning.

    2. In this case, is it possible for the court to enforce the voluntary settlement agreement between the employer and the NLRB without violating any immigration laws? Explain your reasoning.

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    Solution Preview

    1. As a matter of public policy an employer should never be required to reinstate a unlawfully terminated employee, even when that person is an illegal alien. This is primarily due to the fact that this seems to be a situation where the fruit of the poisonous tree doctrine would apply, due to the fact that there was a violation of the Immigration and Reform Control Act of 1986, as well as a violation of the Legal Arizona Workers Act. This would make the (fruit), or illegal alien employees the result of the (poisonous tree), the breaking of state and federal laws, and thereby make it illegal to reinstate them into their positions of employment.

    This situation essentially boils down to a matter of respecting federal and state law. This is due to the fact that it should never be the public policy or legal policy of any nation to violate its immigration laws in order to protect the employment rights of individuals that were not lawfully residing in the country in the first place. If these individuals were allowed to be reinstated into employment, then this would set a precedent in which illegal aliens would be seeking the same rights that legally employed individuals within this nation have. It must be noted that an illegal alien is already committing a criminal offence by residing in this nation illegally, and that the employer that has hired illegal aliens is also committing a criminal offence. Therefore, it is quite inconceivable that this employer should be required to reinstate these individuals to employment, due to the fact that there were unlawfully terminated, because the unlawful termination does not erase the fact that these individuals were illegally living in the country and illegally employed.

    A nation establishes its immigration laws in order to ensure that all of its citizens are legally unaccounted for, and are on record as residing within the nation, paying their taxes, etc. In addition, there is a processing procedure for immigrants to ...