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I-9 E-Verify Immigration Compliance

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  1. Employer Must Give Notice to Union Before Implementing E-Verify

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    An Administrative Law Judge (ALJ) of the National Labor Relations Board (NLRB) held, in The Ruprecht Company, JD (NY)-14-16 (2016), that Ruprecht Co. violated Section 8(a)(5) of the National Labor Relations Act (NLRA) by unilaterally enrolling and implementing E-Verify without prior notice to UNITE HERE Local 1 (Union), who represented the bargaining unit employees.

    The case started when Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on Ruprecht Co. subpoenaing the I-9 forms of their employees. Ruprecht Co. compiled and provided 262 Form I-9’s.

    Company Enrolls in E-Verify Without Notifying the Union

    Before ICE reached any decisions on the I-9 forms or the employees’ authorized status, Ruprecht Co. enrolled in E-Verify and began using it to check the authorized work status of new hires. Ruprecht Co. did not inform the Union of this event at that time. Ruprecht Co. said it did so “in order to avoid a catastrophic loss to its work force should another audit occur in the future.” Ruprecht Co. was not required by state or federal law to enroll in E-Verify. After enrollment, the Union was informed of the use of E-Verify by its members; thus a Union representative contacted Ruprecht Co. with suggested language from other collective bargaining agreements which precluded an employer from using E-Verify unless required to do so by state or federal law. Thereafter, Ruprecht Co. provided the Union with the NOI. On July 16, the company and Union held a bargaining session where Ruprecht Co. made a proposal to use E-Verify and informed the Union it was already using it.

    ICE finds Certain Employees are Unauthorized to Work or Appear to be Unauthorized to Work

    On July 10 and 14, 2015, ICE identified certain employees who were “deemed” to be unauthorized to work unless these employees presented valid documentation. The company notified the Union but refused to supply the names without a confidentiality agreement. On July 17, ICE provided Ruprecht Co. with a Notice of Suspect Documents (NSD) naming 194 employees that did not appear to be authorized to work. It stated those employees should be given an opportunity to present valid documentation and gave the company 10 days to verify their work authorization, terminate the employees or have fines by ICE.

    Three days later, the company called a meeting, informing the employees of the Notice of Suspect Documents and its intent to begin terminating employees within a few days. On July 22, Ruprecht Co. began notifying employees of their termination due to the ICE audit. Apparently, the company never gave the employees an opportunity to present new documentation. The Union was never given a list of employees on the Notice of Suspect Documents because it refused to sign the confidentiality agreement.

    Ruprecht Co. Violated NLRA by not notifying Union of Names on NSD and Use of E-Verify

    As a result of the ICE audit, Ruprecht Co. lost 62 bargaining unit employees. The ALJ found it was clear law that Ruprecht Co. had to terminate all employees who were not authorized to work. However, the ALJ stated if the company had provided the Union with the names on the NSD, it may have been able to assist them in providing valid documentation. Therefore, the company’s refusal to supply the names to the Union violated Section 8(a)(5) of the NLRA.

    Furthermore, the ALJ found the company’s enrollment in E-Verify was a term and condition of employment for which the company held an obligation to notify the Union and give the Union an opportunity to bargain about whether to enroll and use E-Verify. The company failed to do this; therefore, this also violated Section 8(a)(5) of the NLRA.

    Conclusion

    If an employer’s employees are represented by a union, the employer must give the union notice and opportunity to bargain about E-Verify and must, upon request, provide the names of the employees on the NSD. It should be noted an ALJ’s decision is not final and the losing party may appeal the decision to the NLRB. Stay tuned for further developments.
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