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

Sure-Tan, Inc. v. NLRB involved an employer that contacted immigration authorities after undocumented employees supported union representation, causing the employees to depart the United States during the labor case.

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 invoked immigration enforcement in response to protected union activity.

Remedies had to respect immigration law

Backpay and reinstatement required careful attention to whether the workers were lawfully present and available for employment during the remedial period.

Hoffman Plastic later narrowed backpay

Hoffman Plastic Compounds v. NLRB bars certain backpay for unauthorized work obtained with false documents. Sure-Tan should therefore be used for employee status and retaliation principles with current remedy law analyzed separately.

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.