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I-9 E-Verify Immigration Compliance

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  1. Employer’s Reverifications Violate NLRA

    By: Bruce Buchanan, Sebelist Buchanan Law
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    As an immigration attorney and former NLRB attorney, I am always fascinated when immigration law and immigration law overlap. That was the case in Cinelease, Inc., JD(SF)-33-77 (July 2017), where an Administrative Law Judge for the National Labor Relations Board (NLRB) found an employer, Cinelease, to have violated Sections 8 (a)(1) and (3) of the National Labor Relations Act (NLRA) by actions related to reverifying employees’ work authorization documents.

    The issue of reverification arose after the Teamsters Union filed a petition with the NLRB seeking an election of the company’s warehouse employees. Within two weeks, Cinelease’s operations manager had a meeting with an employee and told how him that his work permit had expired. The employer said they learned of this information from another worker.

    Because of this information, Cinelease contacted their legal counsel, who advised to conduct an internal I-9 audit to verify all employees’ documentation. At that time, Cinelease did not have a procedure in place to conduct such an audit and had not been reverifying immigration documentation. Their immigration counsel gave Cinelease instructions from on how to conduct the audit although Cinelease’s managers and legal counsel could not agree on whether they were told to not re-verify green cards.

    Pursuant to the instructions, Cinelease’s HR manager reviewed all the employees’ I-9 forms and made a list of those employees with expired documentation. The list did not differentiate between expired green cards and expired work permits. (An employee’s green card or permanent residence does not end at the end of the employee’s green card and it is unlawful, under the Immigration & Nationality Act (INA), for an employer to reverify an employee’s green card status.)

    The company-wide audit showed 17 employees out of 165 employees had “expired work papers; seven of the 17 employees were warehouse employees. Next, Cinelease began calling in the 17 employees one by one and informing them they had expired work papers and to provide up to date documentation. Some of the employees had not provided updated work permits to Cinelease on a regular basis and only when Cinelease haphazardly requested such. One employee, Hugo Martinez, was unable to provide a current work permit; thus, Cinelease suspended him until December 18, 2016, one day after the NLRB conducted union election.

    Following reverifications of the employees’ documentation, attendance at union meetings declined. The union election ended at a tie. Additionally, the day after the election, suspended employee Martinez was told by Cinelease management that he could take more time to get new documentation.

    In concluding the requests to reverify employees’ employment authorization documents were a violation of Section 8 (a)(1) of the NLRA, the ALJ stated that normally this would not be a violation of the NLRA; rather, it is required under immigration law for work permits. However, the NLRB has previously found this action is unlawful if conducted in retaliation for union activity.

    Thus, the question is whether Cinelease’s actions were retaliatory. As the ALJ stated: “It is perfectly clear the documentation was not requested as part of the Respondent’s ordinary practice of rechecking work authorizations. Rather, such large-scale rechecks of work authorizations was unprecedented.

    Cinelease argued it was just attempting to comply with immigration law. However, Cinelease also rechecked permanent residents, which under immigration law is prohibited. Even for permanent residents, Cinelease requested reverification of their cards, including those whose green cards had not expired. Ultimately, the ALJ found the reverifications were retaliatory and motivated by anger at the union campaign and Martinez for his union support. Thus, they violated the NLRA.

    The ALJ also found the suspension of Martinez was unlawful. This is interesting in that under immigration law, Cinelease took the correct action when it discovered his unauthorized status. But it did it for retaliatory reasons; thus, the ALJ found a violation. For a remedy, Martinez must provide proof of work authorization before Cinelease can put him back on the payroll.

    It will be interesting to see if Cinelease appeals the ALJ’s decision. I will keep you informed.
  2. Employer Must Give Notice to Union Before Implementing E-Verify

    By Bruce Buchanan, Sebelist Buchanan Law

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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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