Employment Litigation · Primary-source case analysis

Sure-Tan: Undocumented Workers Were Employees Under the NLRA, but Remedies Required Lawful Availability

By Aneeta Mishra and Timothy Chan

Published August 21, 2026 · Updated October 17, 2026

Decision: Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984).

Sure-Tan, Inc. v. NLRB, decided by the U.S. Supreme Court on June 25, 1984, involved an employer that contacted immigration authorities after undocumented employees supported union representation. The employees then departed the United States. The Court upheld their protection under the National Labor Relations Act, but rejected parts of the remedy.

The NLRA’s employee definition included undocumented workers

Nothing in the labor statute’s exclusions removed undocumented employees, and protecting their organizing rights furthered workplace standards for the whole labor market.

Retaliatory immigration reporting could violate the Act

The Board could find an unfair labor practice where the employer used immigration reporting to retaliate for protected union activity. Employee status under the NLRA did not depend on authorization to work in the United States. Sure-Tan, pages 891–898.

Remedies had to respect immigration law

Backpay and reinstatement depended on lawful availability for work and legal reentry. The Court rejected a guaranteed six-month backpay award imposed without evidence of each worker’s actual losses and rejected the appeals court’s changes to reinstatement offers. It affirmed in part, reversed in part, and remanded. Sure-Tan, pages 898–906.

Hoffman Plastic later narrowed backpay

Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 146–152 (2002), later barred post-discharge backpay for a worker who was never authorized to work and obtained the job with false documents. That decision left cease-and-desist and notice remedies intact. Sure-Tan explains why retaliatory immigration reporting can violate labor law; it does not promise backpay or permission to work.

Key takeaways

• Preserve evidence connecting immigration reporting to protected activity.
• Separate statutory employee status from work authorization.
• Determine lawful availability during every remedial period.
• Apply Hoffman Plastic and current Board doctrine before calculating relief.