Answer to Question 1
No. The Court expressly noted that a cease and desist order, subject to contempt proceedings, remains a significant deterrent against future statutory violations by employers. Contempt sanctions are available only for violations of court-enforced Board orders obtained through litigations or formal settlements, however. Accordingly, to provide a meaningful remedy for meritorious unfair labor practice allegations involving undocumented workers, the NLRB should seek a formal settlement in cases involving employers that knowingly hire undocumented workers and use their work authorization status to threaten and discharge them in retaliation for their Section 7 activity.
Answer to Question 2
Yes. The IRCA established an extensive employment verification system, designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States. It also makes a crime for an unauthorized alien to subvert the employer verification process by tendering fraudulent documents. Thus, according to the majority of the Court, allowing the Board to award backpay to such illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.
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