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You Can Never Ask an Employee's Immigration Status…Except When You Can

Every H.R. professional knows that one of the “never ask” questions is “Are you an illegal immigrant?” There is one narrow exception to that rule, which came from the Second Circuit Court of Appeals in NLRB v. Domsey Trading Corp. The Court held that during litigation, employers may cross-examine employees about their immigration status to determine the employee’s backpay eligibility under the National Labor Relations Act.

In January 1990, approximately 200 Domsey employees went on strike. After the strike ended, the NLRB determined that the employer had committed unfair labor practices and ordered the reinstatement of the strikers. During a hearing to determine backpay for the workers who were unlawfully denied reinstatement, Domsey raised the issue of immigration status of the employees. The Administrative Law Judge (ALJ) ruled that Domsey was not permitted to inquire into the employees’ immigration status during the backpay period. Before the NLRB had issued its decision, the U.S. Supreme Court decided Hoffman Plastic Compounds, Inc v. NLRB.

In Hoffman, the Supreme Court made it clear that undocumented immigrants are ineligible for backpay under the NLRA. More than five years passed after the Hoffman decision before the NLRB finally issued its supplemental decision in Domsey. The Board held that Hoffman precluded an award of backpay to those employees who admitted to being undocumented during the backpay period. However, the Board did not address the fact that Domsey had been precluded from asking employees about their immigration status.

Upon appeal of the NLRB order, the Second Circuit held that after Hoffman, immigration status is relevant to the question of backpay eligibility. Consequently, the Court concluded that the Board abused its discretion by ratifying the ALJ’s ruling, which was based on an outdated and erroneous view of the law, and by failing to send the case back to the ALJ for further proceedings consistent with Hoffman. The Court reasoned that post-Hoffman, the immigration status of employees is relevant to the issue of whether backpay may be awarded and thus, employers may cross-examine backpay applicants about their immigration status. The NLRB cannot establish evidentiary rules that run afoul of Hoffman.