Company Must Bargain with Union Before Adopting E-Verify

December 14, 2018

Enrollment in E-Verify is a mandatory subject of bargaining, the National Labor Relations Board (“NLRB” or “Board”) recently held, and an employer committed unfair labor practice when it unilaterally enrolled without notify its workers’ union and offering an opportunity to bargain.

The case involved a meat processing company with a collective bargaining agreement with UNITE HERE Local 1.  After getting in some hot water with the U.S. Immigration and Customs Enforcement Agency (“ICE”), the company took several actions such as terminating some employees believed to be unauthorized to work in the U.S., hiring a temp agency to perform some of the work previously performed by union-represented employees, and enrolling in E-Verify (a web-based system run by the Department of Homeland Security to enable employers to confirm the eligibility of their employees to work in the U.S.).  The Board found that the manner in which the company took those actions violated the National Labor Relations Act.

The decision appears to be a case of first impression on the issue of E-Verify enrollment and is one to which union contractors should take note.  The Board adopted the administrative law judge’s finding that enrollment in E-Verify is a mandatory subject of bargaining with little explanation.  The judge, in making the finding, relied in part on a 1999 NLRB decision holding that the length of time given to employees to show authentic work documents constitutes a term and condition of employment over which an employer must bargain.  The judge rejected the argument that the company here had no duty to bargain because E-Verify was used only for new hires and the duty to bargain generally does not extend to matters involving applicants.  The judge found that the new hires were, in fact, employees to whom bargaining obligations apply and not applicants.  The terms of E-Verify strictly prohibit use of the system for pre-employment screening, the judge noted.  A company may use E-Verify only after the individual has been given a firm offer of employment, has accepted, and has completed an I-9 form.

The judge ordered the employer to rescind its participation in the E-Verify program and to bargain in good faith with the union over program participation.  The Board upheld that remedy against the dissent of the sole Republican on the panel deciding the case.  The Board found that the company’s unilateral action compromised the union’s ability, and the company’s incentive “to engage in that give-and-take process with respect to E-Verify by changing the starting point for bargaining.  Once the [company] enrolled in the program, it had the greater leverage.  The Union was placed in the position of offering concessions to persuade the Respondent to restore the status quo and quit the program. The Union thus had far less bargaining leverage than it would have enjoyed had the [company] sought the Union’s agreement to enroll initially.”  Accordingly, the union should have “an opportunity to revisit the issue, if it so desires.”

The company here was not required to enroll in E-Verify as a federal contractor or by any state or local law.  The case does not address whether an employer adopting E-Verify under such a mandate would have the same obligations to notify and bargain with a union.

For more information on E-Verify, visit AGC’s Labor & HR Topical Resources page and select the main category “Other Legal Issues” and subcategory “Immigration & Employment Eligibility.”  For more information on the duty to bargain, select the main category “Collective Bargaining” and subcategory “Collective Bargaining Negotiations.”

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