From Workplace Prof Blog:
In its recent Mezonos Maven Bakery case, the NLRB was faced with a variation on the Hoffman Plastics problem (see here for the Board’s press release). Unlike Hoffman, however, in Mezonos, the employer was found to have been aware of the employees’ undocumented status before hiring. In a unanimous decision (with Member Becker recused), the Board concluded that Hoffman controls and precludes an award of backpay. However, Chairwoman Liebman and Member Pearce issued a concurring opinion, in which they lamented the policy implications of Mezonos and Hoffman. They also noted that, under different circumstances, alternative monetary remedies could be appropriate, such as requiring employers in these situations to pay an equivalent backpay award into a fund–which could, for example, give money to employees awarded backpay that has been uncollected–but not to the undocumented workers.