Alvin Blyer, regional director of the Brooklyn office of the NLRB, brought attention to what he described as the elephant in the room: the immigration and legal status of the workers.
"At the hearing, the employer will claim that some or all of these workers are undocumented; however, there might be an argument, an exception, a way to get around their case," Blyer
believes that Flaum's attorneys will cite Hoffman Plastic Compounds Inc.
v. National Labor Relations Board, a 2002 Supreme Court case stating that an employer did not owe back pay to an undocumented worker.
In the Flaum dispute, the company would have the burden of showing that the workers were undocumented.
said that if the issue of the workers' legality is brought up, the NLRB
will contest it and continue fighting for their rights.