Thursday, November 2, 2017

Is an Employee's Inability to Read or Understand English a Defense to a Motion to Compel Arbitration?

According to the Dallas Court of Appeals, the short answer is that absent fraud or trickery, an employee's inability to read or comprehend English is not a defense to a motion to compel arbitration where the employee executed an English version of an acknowledgment which referenced the arbitration agreement.  MiCocina, Ltd D/B/A Taco Diner v. Jose Balderas-Villanueva, No. 05-16-01507-CV (Oct. 27, 2017).  http://www.search.txcourts.gov/Case.aspx?cn=05-16-01507-CV&coa=coa05
 
In this case, the employee, who did not read or speak English, signed a one-page document titled, "Acknowledgment of Receipt of Employee Handbook," written in English, which memorialized receipt of the Mutual Agreement to Arbitrate, a summary description of the work-related injury plan, a department of insurance non-subscriber form, and a company handbook.  Neither the employer nor the employee signed the Mutual Agreement to Arbitrate referenced in the Acknowledgment. Thereafter, the employee was injured at work when an oven exploded, and sued the employer for damages.
 
The trial court denied the employer's motion to compel arbitration, finding that no contract formation existed and that the employee was misled into signing the document, but the Fifth Court of Appeals reversed and remanded with instructions to grant the motion. 
 
Key to the appellate court's ruling were the following points:
  • An employer may enforce an arbitration agreement with an at-will employee if the employee received notice of the employer's arbitration policy and accepted it.
  • An at-will employee who receives notice of an employer's arbitration policy and continues working with knowledge of the policy accepts the terms as a matter of law.
  • It was undisputed that the employee's claims fell within the scope of the Mutual Agreement to Arbitrate.
  • The  Mutual Agreement to Arbitrate did not need to be signed by both parties because it was incorporated by reference in the paper signed by the person sought to be charged.
  • The signed Acknowledgment that specifically identified the Mutual Agreement to Arbitrate was evidence of notice.
  • Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it or thought it had different terms.
  • Illiteracy will not relieve a party of the consequences of his contract.
  • If a person is unable to read a contract, it is his duty to find some reliable person to read and explain it to him before he signs it.
  • The fact that a person may not be fluent in English does not of itself create the type of confidential relationship that would relieve the person from his duty to read a contract.
  • A party does not have a general duty to explain, discuss, or translate an arbitration agreement merely because the subject matter concerns arbitration.
Here, despite conflicting testimony regarding whether the employee was provided with copies of various documents translated into Spanish, and despite the fact that the employer told the employee to sign the Acknowledgment because it was related to restaurant policies, the appellate court concluded that the employee failed to provide evidence of a fraudulent misrepresentation or trickery.

Thursday, October 5, 2017

Seventh Circuit Panel Affirms that the ADA is Not a Medical-Leave Statute

    In a decision that took more than one year from the date of oral argument to issue, a panel of the Seventh Circuit recently affirmed summary judgment for a company that was sued for violations of the ADA, including a failure to accommodate, after it terminated an employee who had exhausted his Family and Medical Leave Act (FMLA) leave and was unable to return to work for at least another two months due to a planned surgery.  Severson v. Heartland Woodcraft, Inc., No. 115-3754 (7th Cir. Sept. 20 2017). 

    With assistance from the EEOC, the employee argued that a long-term medical leave of absence should qualify as a reasonable accommodation under the ADA when the leave is for a definite duration, requested in advance, and likely to enable the employee to perform the essential job functions upon return to work. The Court rejected this argument, noting that the term “reasonable accommodation” is expressly limited to those measures that will enable the employee to work.  An employee who needs long-term medical leave cannot work, and thus is not a “qualified individual” under the ADA.
    The Court noted that a leave of absence “may” be a reasonable accommodation, provided that the duration of the leave is short (such as a few days), but squarely rejected the idea that the ADA is a medical leave statute, or an “open-ended extension of the FMLA.”  Simply put, an extended leave of absence does not give a disabled employee the means to work; rather, it excuses his work.  An inability to do the job’s essential functions means that one is not “qualified”; it does not mean that the employer must excuse the inability.  This decision follows several others, including the 2014 Hwang v. Kansas State University decision by a panel of the Tenth Circuit, which are providing employers with much-needed guidance on the issue of leave as a reasonable accommodation.  

Friday, September 1, 2017

New Texting and Driving Ban Effective Today in Texas

Employers with employees who drive as part of their job duties should know that Texas's texting while driving ban takes effect today.  Fines can range from $25 to $99, and up to $200 for repeat offenders. Drivers are, however, permitted to use hands-free devices. Employers should ensure employees are aware of the ban and penalties. 

Monday, August 21, 2017

Scimitars, Sabers and Samurai Swords, Oh My! Texas’s New Open Carry of Blades Law

Effective September 1, 2017, and pursuant to House Bill 1935, Texans over the age of eighteen will be permitted to open carry knives with blades longer than five and one-half inches.  Instead of prohibiting the carrying of an “illegal” knife, defined in the prior version of the law as “a knife with a blade over five and one-half inches,” including, without limitation, daggers, dirks, stilettos, poniards, bowie knives, swords, or spears, the new law focuses on public places where these types of blades (now known as “location-restricted knives”) cannot be open carried. 
 
More specifically, under HB 1935, a person commits a felony of the third degree if he intentionally, knowingly, or recklessly possesses or goes with a location-restricted knife on the physical premises of a school or educational facility; on the premises of a polling place on the day of an election or while early voting is taking place; on the premises of any court buildings or court offices, or racetracks; or in or into the secured area of an airport. 
 
The new law provides that a person commits a Class C misdemeanor if he intentionally, knowingly, or recklessly possesses or goes with a location-restricted knife into a bar; on the premises where a high school, collegiate, or professional sporting event is taking place; on the premises of a correctional facility, hospital, mental hospital, or amusement park; or on the premises of an established place of religious worship. 
 
Whether you’re a swashbuckler or a Samurai, and whether your blade of choice is the Sword of Gryffindor or a Katana, polish up those sheaths and scabbards to be ready for September 1st.
 
 
Blades of Glory
 

Monday, August 14, 2017

Citing Stephen Colbert, the Fifth Circuit Rolls Back Several NLRB Handbook Positions

Not long ago, I wrote about how the National Labor Relations Board’s (NLRB's) positions on various handbook policies transcended common sense.  In a recent opinion, a three-judge panel of the Fifth Circuit Court of Appeals agreed, holding that the following employer handbook policies did not, contrary to the NLRB’s opinion, violate Section 7 of the National Labor Relations Act and “chill” an employee’s organizing rights: (1) encouraging employees to “maintain a positive working environment”; (2) prohibiting "arguing or fighting," "failing to treat others with respect," and "failing to demonstrate appropriate teamwork"; and (3) prohibiting access to electronic information by non-approved individuals. See T-Mobile USA, Inc. v. National Labor Relations Board, No. 16-60284 (5th Cir. July 25, 2017). 
 
According to the Court, the relevant inquiry isn’t whether a rule “could” conceivably be read to cover Section 7 activity, but rather whether a reasonable employee reading the rule “would” construe it to prohibit Section 7 activity.  A reasonable employee is one who is aware of her legal rights, "but who also interprets work rules as they apply to the everydayness” of her job.  

As I said in my earlier blog, and as the Court reasoned, reasonable people understand the meaning of work rules such as, “treat employees with respect,” and “don’t fight at work.”  To drive home its point, the Court, in a footnote, cited a YouTube clip from Stephen Colbert mocking the NLRB’s position.  And if you’re wondering, the Fifth Circuit doesn’t routinely cite to YouTube in its opinions. The decision is important for Texas employers because it reinforces the idea that an employer has the right to enact “reasonable” work rules.   
 

Wednesday, May 31, 2017

The Texas Supreme Court Takes an Egg from the Employment Plaintiff's Basket

In its ExxonMobil Corporation and WHM Custom Services Inc. v. Rincones decision issued last week, the Texas Supreme Court held that there is no independent cause of action in Texas for compelled self-defamation.  http://www.txcourts.gov/supreme/orders-opinions/2017/may/may-26-2017/.
 
The crux of this sometimes-recognized tort is that a former employee's publication to a third party can satisfy the publication element of a defamation claim because the former employee is effectively compelled to publish the defamatory statement to prospective employers when the employee is asked why she left her former employment.  The claim often arose in cases where an employee alleged that the employer gave a false reason for the employee's discharge, and the employee was "compelled" to publish the false statement to prospective new employers during the hiring process.  Prior to the Supreme Court's decision, several appeals courts in Texas had recognized the theory.

In its decision, the Court cited several reasons for its refusal to recognize the claim.  First, such a refusal is a natural extension of the well-established rule that if the publication about which the plaintiff complains was consented to, authorized, invited, or procured by the plaintiff, she cannot recover for injuries sustained by reason of the publication.  Second, the recognition of such a claim would not only discourage plaintiffs from mitigating damages to their own reputations, but would also enable an employee to unilaterally create an actionable tort against the employer, and third, the compelled, self-defamation doctrine would unacceptably impinge on the at-will employment doctrine.  
 
In short, employment plaintiffs now have one less claim to assert against employers in Texas.

Tuesday, May 16, 2017

When Can Employers Expect a Cessation of the NLRB's Handbook Policy Hostilities?

Pundits proclaimed that with the new administration, the National Labor Relations Board (NLRB) would dial down or pull back from its current position of DEFCON 2 with respect to employer handbook policies.  As evidenced by a decision issued by an Administrative Law Judge last week, it does not appear that a retreat is in sight.
 
In Entergy Nuclear Operations Inc. and United Government Security Officers of America, Local 25, Case Nos. 01-CA-153956, 01-CA-158947, and 01-CA-165432 (May 12, 2017), the ALJ found that the following handbook policies violated the National Labor Relations Act (NLRA), even though most of them were not actually at issue in the case:
 
1.  Integrity Code (communications): employees should not engage in communications that "include material that is inappropriate, untrue, or disparaging to outside parties or to [employer]."  According to the ALJ, the NLRB has repeatedly held that such a prohibition is unlawful because it restricts employees in the exercise of their Section 7 rights by prohibiting statements which are merely false, as distinguished from those which are maliciously so.  Bottom line: Section 7 protects employees who make false statements. 
 
2.  Information Protection Policy (disclosure of employee information):  provisions that prohibit employees from disclosing "employee information" and "employee records."  According to the ALJ, the policies "fail to clarify that they do not prohibit employees from disclosing such information as part of NLRA-protected activity."
 
3.  Information Protection Policy (use of company name and logo):  employees are prohibited from allowing any outside party to use "the name of any [employer] and any [employer] logo...without prior approval" from management officials.  The ALJ found that the employer could not articulate a "business reason" for the restrictions.
 
4.  Information Protection Policy (recordings): prohibits employees from photographing, video-recording, or audio-recording anything at the facility and/or anything that includes information that the employer deems "confidential" or an "information asset" without approval from the employer.  The ALJ found that the employer, which operates a nuclear power plant and must comply with various Nuclear Regulatory Commission regulations, could not articulate a "legitimate business need" for a blanket policy.
 
5.  Issue Resolution Policy (confidentiality):  prohibits employees, without the approval of the senior vice president of human resources, from discussing with, or disclosing to, individuals who do not have a legitimate business reason to know any information collected by the decision-making panel.  The ALJ found that a blanket policy such as this one interferes with the employees' Section 7 rights.
 
6.  Government Investigations Policy (participation):  various provisions prohibit employees from answering any questions posed by a governmental investigator without first contacting the company's legal departments, prohibit employees from providing any documents requested by a government investigator without first contacting the company's legal department, and require employees to contact the legal department before contacting a governmental agency about the company's business.  Without hesitation, the ALJ found that these provisions "unlawfully interfere with employees' independent communications with the NLRB and its representatives." 
 
Absent a clear directive from the administration or definitive action by the Board, unionized and non-unionized employers need to continue to ensure that their handbook policies comply with the myriad of restrictions imposed by the NLRB. 
 

Friday, May 12, 2017

Texas Supreme Court Takes Up Important Issues in Same-Sex Harassment Case

Currently pending before the Texas Supreme Court is a case involving three important issues for Texas employers, both public and private.  First, to invoke the TCHRA’s waiver of governmental immunity, must a plaintiff establish but-for causation found in the third step of the McDonnell Douglas burden-shifting framework? Second, what kind of evidence can establish that same-sex harassment was not just about gender, but because of gender?  And third, must a supervisor actually exercise hiring and firing authority under the United States Supreme Court’s standard in Vance v. Ball State Univ. for the purpose of establishing vicarious liability?
 
In Alamo Heights Ind. Sch. Dist. v. Clark, No. 16-0244, Clark, a female physical education teacher and coach, claimed she was sexually harassed by her female supervisor and a co-worker, and fired in retaliation for her complaints.  In the trial court below, the school district filed a plea to the jurisdiction, which the trial court denied, and then appealed the denial to the Fourth Court of Appeals, which upheld the trial court’s ruling.  The Texas Supreme Court recently agreed to hear the case.
 
Both sides weave vastly different stories in their briefing.  The school district claims that the trial court and the Fourth Court of Appeals erred, and should have: (1) required Clark to prove but-for causation to survive the plea to the jurisdiction; (2) determined that Clark was unable to prove her sex harassment claim because the harassment was about gender, but not based on gender; and (3) found that Clark’s “supervisor” was not a “supervisor” in accordance with the Vance standard.
 
In turn, Clark: (1) disputes that she is required to prove but-for causation to survive the plea to the jurisdiction, and instead claims she must only establish a prima facie case; (2) claims that the evidence, which includes lewd comments and touching, establishes that the harassment was based on sex; and (3) contends that one of the harassers was a de facto supervisor under Vance, and was also a “supervisor” for other reasons. 
 
If the school district is right about the jurisdictional issue, plaintiffs seeking a waiver of sovereign immunity under the TCHRA will face a high burden early in the litigation when challenged by a plea to the jurisdiction.  If Clark is right about her same-sex harassment claim, then the Court could arguably, expressly or implicitly, expand the evidentiary routes for a plaintiff to establish harassment because of gender.  And finally, the Court’s decision about the scope of authority required to establish “supervisor” status, if reached, could either expand or contract the pool of individuals who can subject an employer to vicarious liability.
 
 

Friday, April 21, 2017

Slow Death on the Vine? 5th Circuit Grants Second Extension in Overtime Suit

Since the government's appeal of in injunction issued in December 2016 by Judge Amos Mazzant that blocked the implementation of the Obama administration's overtime rule overhaul, employers have been waiting to see whether the new administration will take up the battle cry or fall back and retreat.
 
This week, and for the second time since the government filed its appeal, the Fifth Circuit granted an extension of 60 days, or to and including June 30, 2017, for the government to file a reply brief. 
 
Clearly, the government is waiting on the confirmation of Alexander Acosta as the new Secretary of Labor, and expects him to provide guidance regarding the administration's position on this issue.  Assuming that Acosta is confirmed, and based on his confirmation hearing testimony, it is unlikely that the Department of Labor will continue the appeal.  What is unknown is whether Acosta will consider more modest changes to the current overtime rules in the future.



Sunday, April 16, 2017

Fifth Circuit's Recent Retaliation Ruling Provides Employers with Ammunition

To state a claim for retaliation under Title VII, a plaintiff must show that: (1) he engaged in conduct protected by Title VII; (2) he suffered a materially adverse action; and (3) a causal connection exists between the protected activity and the adverse action.  For an employer's action to qualify as a materially adverse action, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, meaning that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.
 
In the Cabral v. Brennan decision issued last week, the Fifth Circuit affirmed summary judgment for the United States Postal Service (USPS) and agreed that a two-day suspension without pay did not constitute a materially adverse employment action to support a Title VII retaliation claim.  A copy of the decision can be found here: http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions.
 
In Cabral, the USPS suspended a letter carrier for two days without pay after a supervisor asked Cabral to produce a valid driver's license and he failed to do so.  At the time of the incident, Cabral had already filed multiple charges of discrimination against the USPS, as well as multiple union grievances.  A few weeks later, the USPS reimbursed Cabral for any lost pay.
 
Interestingly, the Court's decision did not turn on the fact that the USPS made Cabral whole by making up the back pay, or a finding that a reasonable employee would not have been dissuaded from bringing a charge.  In contrast, it turned on the fact that Cabral did not show that his suspension exacted a physical, emotional, or economic toll.  The Court rejected his conclusory statements attesting to the emotional or psychological harm he suffered because of the suspension, and noted that he failed to provide any supporting documentation.
 
In short, a suspension without pay could constitute a materially adverse action, but currently, this is not a bright-line rule in the Fifth Circuit.  Employers faced with retaliation claims should ensure they engage in sufficient discovery related to the plaintiff's emotional state following the challenged action.
 
   

Tuesday, March 14, 2017

11th Circuit Panel Parses Gender Stereotyping and Sexual Orientation Claims


Last week, a panel of the Eleventh Circuit affirmed dismissal of a plaintiff’s Title VII sexual orientation claim, but vacated the district court’s order dismissing the employee’s gender non-conformity claim, drawing both an interesting concurring opinion and a no-holds-barred, partial dissent.  See Evans v. Georgia Regional Hosp., et al., No. 15-15234 (11th Cir. March 10, 2017). 
In Evans, the initially pro se plaintiff, a lesbian hospital security officer, claimed, among other things, that she was discriminated against for failing to conform to gender stereotypes and because of her sexual orientation.  A magistrate judge recommended dismissal of the claims because Title VII was not intended to cover discrimination against homosexuals, and further because the gender non-conformity claim was “just another way to claim discrimination based on sexual orientation.”  The district court conducted a de novo review of the record and adopted, without further comment, the magistrate’s recommendations.
 
On appeal, a panel of the Eleventh Circuit, relying on the Fifth Circuit’s decision in Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), affirmed dismissal of the sexual orientation claim because, as the Blum Court found, discharge for homosexuality is not prohibited by Title VII.  Drawing a line between sexual orientation and sex stereotyping, the Court reversed and remanded the gender non-conformity claim, finding that a gender non-conformity claim is not just another way to claim discrimination based on sexual orientation.
 
In a concurring opinion, Judge Pryor agreed with the majority’s opinion, but drew a different line between discrimination based on behavior, and discrimination based on status.  According to Judge Pryor, the former is protected, but the latter is not, because Congress has not made sexual orientation a protected class. 
In a partial dissent, Judge Rosenbaum argued that when a woman alleges that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be, and it is “utter fiction” to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. This, says Judge Rosenbaum, is discrimination “because of sex.” 
This decision highlights the ongoing struggles in the courts about the breadth of Title VII’s protections, and once again begs the question of which branch of government, if any, will provide a definitive answer.
 
 

Monday, March 13, 2017

Lessons from a Recent Employer Win in an ADA Accommodation Case

A Texas employer defeated multiple, disability-based claims brought by the Equal Employment Opportunity Commission (EEOC) on behalf of an employee who injured herself on the job and complained when the employer did not reassign her to a different position.  In EEOC v. Methodist Hospital of Dallas, No. 3:15-CV-3104-G, the employee, a patient care technician (PCT), injured herself on the job and obtained various medical restrictions, some of which restricted work entirely, and some permitting light duty work.  The employer accommodated the light duty until the employee's doctor released her to return to work as a PCT.  Around the time of the release, the employee approached the employer and requested a reassignment to accommodate her injury.  She also requested and received leave under the Family and Medical Leave Act (FMLA), as well as additional, personal leave. 
 
The employer did not reassign the employee to the scheduling coordinator position she desired, because at the time she made the request, she had not been released to return to work in any position.  Additionally, despite the employer's outreach, the employee repeatedly failed to contact human resources to discuss her employment.  The employer eventually separated the employee from employment, prompting a suit by the EEOC alleging that the employer violated the ADA by failing to accommodate the employee by reassigning her to the scheduling coordinator position.  The EEOC also alleged that the employer maintained an unlawful policy of requiring individuals with disabilities who require reassignment as a reasonable accommodation to compete for vacant positions.
 
Here are the highlights of what persuaded the Court to grant summary judgment for the employer on all counts:
 
1.  The employee was not qualified for the scheduling coordinator position.  When an employee requests reassignment as a reasonable accommodation, courts look to the job the employee seeks when determining whether he or she is a qualified individual with a disability.  An essential function of nearly every job is the ability to appear for work.  At the time the employee applied for the reassignment, she had not been released to return to work, and therefore, could not meet the attendance requirement.  Additionally, the Court cited with approval authority for the proposition that an employee who fails to provide a release is not a qualified individual under the ADA. 
 
2.  Documentation and timing are critical.  The EEOC failed to produce any evidence that the employee could attend work on the date she applied for the scheduling coordinator position.  The Court rejected several documents proferred by the EEOC to show otherwise.
 
3.  A policy requiring a release to return to work is not a per se violation of the ADA.  The Court agreed that a policy requiring 100% recovery to return to work may violate the ADA, but here, the EEOC failed to submit any evidence that the employer required a "full release."  In fact, the employer's accommodation of the employee's light duty requirements undercut the argument that the employer required a full release.
 
4.  If an employee cannot perform the essential function of attendance  due to FMLA leave, the employee is not a qualified individual within the meaning of the ADA.  Put another way, if an employee's inability to attend work is necessitated by FMLA leave, the employee will not meet the "qualified individual" standard necessary to prevail on a claim under the ADA.  As the Court noted, a reasonable accommodation does not require an employer to wait indefinitely for the employee's medical condition to be corrected. 
 
5.  Reassignment to a vacant position may be appropriate pursuant to the EEOC's Guidance, but only if it is reasonable, and is the accommodation of last resort.  Here, the Court took the employee to task for failing to explore other accommodations before insisting on reassignment. 
 
6.  The ADA does not require reassignment without competition for, or preferential treatment of, the disabled.  Although the Fifth Circuit has not yet weighed in on the issue of whether the ADA requires an employer to reassign a disabled employee as a reasonable accommodation, the district court decided, based on the weight of Fifth Circuit authority, that the ADA does not require affirmative action in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled. 
 
In short, the employer provided leave as a reasonable accommodation, accommodated the employee's light duty restrictions, and engaged in the interactive process to the extent it was able to do so.   The employee failed to engage in the interactive process and insisted on an accommodation that was not, according to the Court, an accommodation of last resort.  Finally, an employer is not generally required to give preferential treatment to a disabled employee by reassigning him or her to a position for which there are other, qualified but non-disabled candidates.

Wednesday, March 1, 2017

Will Employment Law Protections for Undocumented Immigrants Survive under the New Regime?


With the new administration’s flurry of activities related to the broader enforcement of immigration laws, one issue looms large for employment lawyers---will undocumented immigrants still be protected from unlawful employment practices under various federal laws?  The answer today is far from clear.
Title VII of the Civil Rights Act of 1964, as amended (Title VII), protects “individuals” from unlawful employment practices, and does not distinguish between documented and undocumented workers.  In its Compliance Manual, Section 2, “Threshold Issues,” the EEOC opines that, “Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status.”
 
At least one court within the Fifth Circuit has expressed that “illegal aliens” would be entitled to protections under Title VII.  See EEOC v. Taqueria Rodeo de Jalisco, No. 4:11-cv-03444, 2012 U.S. Dist. Lexis 179552, *7 n.1 (S.D. Tex. Dec. 19, 2012).  The Texas court’s position is clearly at odds with the Fourth Circuit’s decision in Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 187-88 (4th Cir. 1998), wherein that Court found that the employer did not violate Title VII when it refused to hire the plaintiff, an undocumented alien, because to hold otherwise would be to “nullify IRCA [the Immigration Reform and Control Act], which declares it illegal to hire or to continue to hire unauthorized aliens.” 
The Fair Labor Standards Act of 1938, as amended (FLSA), protects “employees,” and in March 2014, the United States Supreme Court declined to review a decision by the Eight Circuit affirming a jury verdict for several undocumented workers for nearly $300,000 for FLSA violations.  See Jerusalem CafĂ©, LLC v. Lucas, 721 F.3d 927 (8th Cir. 2013), cert. denied March 10, 2014.  In its decision, the Eighth Circuit minced no words when it determined that, “The FLSA’s sweeping definitions of ‘employer’ and ‘employee’ unambiguously encompass unauthorized aliens.”
 
Fifteen years ago, the United States Supreme Court decided Hoffman Plastics Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), and held that, in connection with a finding that an employer committed an unfair labor practice under the National Labor Relations Act (NLRA), the Board could not award back pay to an undocumented worker because such an award would represent wages the individual could not legally have earned.  According to the Court’s majority, “awarding backpay in a case like this not only trivializes the immigration laws [specifically, IRCA], it also condones and encourages future violations…it would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.”  The Board did, however, impose other sanctions on the employer. 
Several recent developments may further impact these decisions and increase the level of uncertainty for employers.  First, in late February 2017, the Fifth Circuit reinstated H.B. 11, a Texas law which makes it a felony to encourage unauthorized immigrants to enter or remain in the country by concealing, harboring, or shielding them from detection.  See Cruz v. Abbott et al., No. 16-50519 (5th Cir. Feb. 23, 2017).  While the Court held that there is “no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes harboring that person from detection,” it is unclear whether and how this law applies to employers who knowingly employ and house unauthorized immigrants. 
 
Second, in January 2017, the White House issued two Executive Orders related to border security, which in turn resulted in two Memos from John Kelly, the Secretary for the U.S. Department of Homeland Security.  The Memos, in part, implement “new policies designed to stem illegal immigration and facilitate the detection, apprehension, detention, and removal of aliens who have no lawful basis to enter or remain in the United States.” 
These developments appear to contradict at least two of the Equal Employment Opportunity’s (EEOC’s) priorities in its Strategic Enforcement Plan for Fiscal Years 2017-2021 (SEP), including: (a) “protecting vulnerable workers, including immigrant workers, and underserved communities from discrimination”; and (b) “preserving access to the legal system.”  Notably, EEOC Acting Chair Victoria Lipnic recently commented that the SEP enforcement priorities would remain largely the same. 
In short, how can undocumented immigrants pursue their rights under the legal system in light of the administration’s determination to find and deport them?  And, what obligations do employers have in relation to the treatment of undocumented workers?  As with many employment issues, this one will more than likely be resolved by the courts.