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I-9 audits may be suspect if timed near union-organizing activities
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Organizations must walk a fine line to satisfy their obligations to comply with both the Immigration Reform and Control Act of 1986 (IRCA) and the National Labor Relations Act (NLRA). Employers need to be aware of a recent case that highlights the importance of establishing robust company policies to achieve compliance with both of these complex areas of federal law. This case shows that employees who are not documented to work still have the right to participate in union-organizing activities under the NLRA and that immigration audits may not be used as a threat to bar them from exercising this right.
The Cinelease Case
On July 19, a National Labor Relations Board (NLRB) administrative law judge (ALJ) found that a California entertainment industry company, Cinelease Inc., violated federal labor law when it conducted an internal audit of the immigration status documents of its employees during a Teamsters union-organizing campaign.
In the Cinelease case, Teamsters Local 399 filed a petition for representation with the NLRB, seeking to represent the company's warehouse employees, including lighting technicians and repair workers. Prior to the election, Cinelease received information that the work authorization documentation had expired for one of its employees. In response, it initiated a companywide audit of its compliance with immigration laws. It began rechecking employees' work status and seeking additional documentation from those employees. As a result of the audit, Cinelease identified 17 employees as having expired employment authorization documents. Seven of those 17 were warehouse workers, who were members of the petitioned-for bargaining unit. The company suspended one employee, Hugo Martinez, after he was unable to provide documents verifying his work authorization status. Martinez had openly supported the union.
IRCA prohibits employers from hiring and employing an individual without verifying his or her identity and employment authorization and from continuing to employ an individual knowing that he or she is not currently authorized for employment. To achieve compliance with IRCA, employers are required to prepare and retain Form I-9 at the time of hire and to timely reverify the employment authorization of employees whose employment authorization is time-limited.
[SHRM members-only toolkit: Complying with I-9 and E-Verify Requirements in the United States]
The ALJ found that Cinelease violated the NLRA, despite the company's obligation under IRCA to ensure that it does not continue to employ individuals not currently authorized for employment, because its actions were deemed retaliatory and a violation of the NLRA. The ALJ reached this conclusion for a number of reasons, including that the company:
The ALJ found that Cinelease unlawfully threatened employees when it launched its immigration audit, and that the company announced the audit to its employees in an effort to discourage support for the union.
The NLRB's Position on Immigration Status
Questions regarding the interplay between IRCA and the NLRA have been brewing for over a decade. Individuals, regardless of immigration status, have rights under the NLRA, including the right to organize a union and engage in protected concerted activity, such as talking about working conditions with co-workers.
The NLRB will pursue cases in which a worker has been fired for exercising his or her rights under the NLRA, regardless of immigration status. If the employer proves that the worker was not authorized to work, the NLRB cannot order the employer to pay the worker lost wages and may not be able to get the worker his or her job back, but other remedies may be available. In the landmark case Hoffman Plastic Compounds Inc. v. National Labor Relations Board, the Supreme Court of the United States clarified that it would not enforce an NLRB order awarding backpay to an undocumented worker. The court found that a backpay order to an individual who was not legally eligible to work conflicts with IRCA. It acknowledged that the NLRB could still seek remedies such as notice postings and cease-and-desist orders.
Shortly after the Hoffman Plastic case, the NLRB announced that it would refrain from seeking backpay and reinstatement for an undocumented worker if the employer could establish it would not have hired or retained the worker due to his or her immigration status. But it also instructed its regional offices to presume that all workers are lawfully authorized to work and prohibited NLRB staff from conducting investigations into workers' immigration status.
In recent years, the NLRB has taken an increasingly aggressive position with respect to these cases. If the employer proves that the employee was not authorized to work, the NLRB will still seek other remedies and may work with immigration agencies to assist the worker. For example, the NLRB may work with immigration agencies to determine whether the individual could be eligible for immigration benefits such as a U visa, T visa, or deferred action so that he or she may remain in the United States. These immigration programs may provide an individual with work authorization, immigration status for family members, and a path to becoming a lawful permanent resident or U.S. citizen.
Even more recently, the NLRB general counsel instructed regional offices to consider seeking extraordinary remedies against employers, and to work with immigration agencies to explore whether special visas or discretionary relief can be provided for undocumented workers and their families to shield them from removal from the United States. Specifically, regional offices have been encouraged to coordinate with the U.S. Department of Justice's Immigrant and Employee Rights Section, the unit charged with enforcing the anti-discrimination provisions of the Immigration and Nationality Act.
The NLRB's current enforcement policies create a strong incentive for undocumented workers to initiate or participate in union-organizing and related NLRB proceedings—doing so potentially provides a visa and a pathway to lawful status for the worker and his or her family.
Best Practices for Employers
In sum, these complicated areas of federal law can pose unexpected liabilities for employers. Asking workers to provide paperwork to show they are eligible to work in the United States is not only lawful but is required by immigration law. Employers are expected to ensure that the documentation supporting an employee's work authorization has not expired. While employers must obey immigration laws, they cannot use workers' immigration status to threaten them or discourage them from engaging in protected activity.
Employers should not be discouraged from their efforts to achieve compliance, particularly due to recent immigration enforcement trends under the new administration. Instead, employers should establish systems for ensuring immigration compliance, should obtain training about when and how to conduct immigration audits, and should be aware of activities and events that could pose concerns, such as union-organizing drives and elections. For example, some employers use reminder systems to assist them with compliance reviews, to ensure that such reviews are regularly carried out in accordance with established company policy. Employers that have an established policy and a system in place for reviewing immigration compliance are in a much better position to defend against claims—whether under the NLRA or IRCA.
The case is Cinelease Inc. and Studio Transportation Drivers Local 399 of the International Brotherhood of Teamsters, National Labor Relations Board Case Nos. 31-CA-166005, 31-CA-167675 and 31-CA-164872.
Jamie R. Adams is an attorney with Greenberg Traurig in San Francisco. Ian R. Macdonald is an attorney with Greenberg Traurig in Atlanta.
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