Enrolling in E-Verify Without Union Consent Violates NLRA

By Roy Maurer Jun 3, 2016
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Employers with unionized workforces must notify union representatives before enrolling in E-Verify, a judge for the National Labor Relations Board (NLRB) ruled.

“The decision raises several issues of interest to unionized employers who are seeking to comply with federal regulations concerning the employment of work-authorized individuals,” said Sari Long, an attorney in the Washington, D.C., office of Faegre Baker Daniels. “Unionized employers, often in industries with high rates of immigration audit and enforcement, should consider the implications of enrolling in E-Verify.”

Trouble for the Ruprecht Company, a meat processor and food manufacturer based in Mundelein, Ill., began when it became the focus of an I-9 audit by Immigration and Customs Enforcement in January 2015. Consequently, 62 of the 92 employees represented by Unite Here Local 1 were terminated or resigned as a result of the audit.

During the audit, and “in order to avoid a catastrophic loss to its workforce should another audit occur in the future,” the company voluntarily enrolled in E-Verify, the federal government’s Internet-based employment verification system, and began using it to check the authorized work status of new hires. The union was informed of the enrollment by its members.

NLRB Administrative Law Judge Joel Biblowitz found the company’s enrollment in E-Verify was a term and condition of employment and the company had an obligation to notify the union, giving it an opportunity to bargain about whether the company should enroll in and use E-Verify.

“The National Labor Relations Act (NLRA) requires unionized employers to give the union notice and the opportunity to bargain before changing terms and conditions of employment that are ‘mandatory subjects of bargaining,’ ” said Ryan Funk, an attorney in Faegre’s Indianapolis office and a former attorney and examiner with the NLRB. “The judge acknowledged that the NLRB recognizes an exception to mandatory bargaining where the employer can establish a ‘compelling business justification’ or where ‘economic exigencies compelled prompt action,’ but refused to apply those exceptions in this case.”

The judge ruled that Ruprecht violated its duty to bargain in good faith with the union and ordered it to rescind its participation in E-Verify upon request of the union.

Ruprecht can appeal the decision to the full NLRB.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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