Are undocumented workers entitled to the same remedies available to all other workers for violations of the laws enforced by the EEOC?

Generally, yes, but not if the award would conflict with the requirements of immigration laws. For instance, in the case of an undocumented worker, s/he cannot be reinstated unless s/he produces the work documents required by immigration law.

The US Supreme Court has held that federal immigration policy precludes the National Labor Relations Board from awarding back pay to an undocumented alien who was never legally authorized to work in the United States. The EEOC is evaluating the impact of that decision on the availability of monetary remedies to undocumented workers under the federal employment discrimination laws.

Some guidance may be available from the National Labor Relations Board’s response to the Supreme Court’s decision. According to the Board:

• Back pay is not available to workers for the period of time they were legally unavailable to work in this country. It does not matter whether or not the employer knowingly or unknowingly hired an undocumented worker.

• Back pay may still be available in non-discharge situations, such as a unilateral change in pay or benefits. Such an award does not compensate for work not performed, but rather makes employees whole for work they have already performed and for which they did not receive full compensation. The Labor Department has applied this distinction in deciding to continue to seek a monetary remedy to compensate undocumented employees for substandard payments in violation of the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.