On the heels of the President’s executive action on immigration, Richard Griffin, the National Labor Relations Board’s General Counsel, issued GC Memorandum 15-03 on February 27, 2015 providing updated procedures to address issues that might arise in the investigation and prosecution of unfair labor practice cases involving employees’ immigration status. The NLRB’s new procedures are noteworthy not only because the NLRB will clearly be more aggressive in cases involving undocumented workers, but also because they might result in more unfair labor practice charges filed by such employees hopeful that the NLRB will help them obtain a visa.

While an employee’s immigration status is irrelevant as to whether an employer violates the National Labor Relations Act vis-a-vis that employee, immigration status is relevant as to the remedies available to the Board in the event it does find a violation of the Act. In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court, in a 5-4 decision, held that federal immigration policies prohibit the NLRB from awarding undocumented workers back pay and reinstatement. Thus, the General Counsel’s new procedures seek to address this shortcoming by either remedying alleged discriminatees’ undocumented status or seeking alternative remedies.

First, the General Counsel instructs its regional offices not to consider an individuals’ immigration status in the investigation of whether the Act has been violated.

Where the charged party’s defense to an alleged unlawful discharge is that it was motivated by the need to comply with immigration laws, the relevant inquiry at the merit stage is only whether the charged party’s asserted reason is the motivating cause for the adverse action. Thus, even in these situations the investigatory focus should be on employer motivation and the Region should not investigate or determine the individual employee’s actual immigration status.

Second, where an employee’s immigration status might impact the Board’s ability to remedy or litigate a potential unfair labor practice violation, the General Counsel wants to remove that limitation by helping the employee obtain a visa. Specifically, the General Counsel instructs the Regions to determine whether “potential discriminatee(s) and/or witness(es) could be eligible for a U or a T Visa, or for deferred action and whether the NLRB should certify and/or facilitate this process….” (emphasis added). Moreover, in an apparent attempt to limit potential interference in a labor dispute or representation election, to draw attention to the employer’s use of undocumented employees to discourage such a defense, or both, the General Counsel wants the NLRB to engage the Department of Justice and Department of Homeland Security in these types of cases.

Third, if immigration status will impact the Board’s ability to seek back pay and reinstatement, the new procedures require the Region to explore any alternative remedies including:

  • Notice reading;
  • Publication of the notice in newspapers and/or other forums;
  • Training for employees on their rights under the Act;
  • Training for supervisors/managers on compliance with the Act;
  • Gissel bargaining order;
  • Union access to employee contact information;
  • Reimbursement of organizing or bargaining expenses;
  • Consequential damages;
  • Instatement of a qualified referred candidate; and
  • Any other remedies that may be appropriate in a particular case.

Finally, the General Counsel wants the Region to explore a formal settlement in such cases, presumably in the hope that it might be able to achieve by agreement that which it cannot through litigation–i.e., back pay and/or reinstatement for the undocumented workers. As the General Counsel’s memorandum notes, that would then “enable the Agency to seek the immediate assistance of the federal courts in the event of noncompliance with the terms of the extant settlement and in the event of future violations.”

GC Memorandum 15-03 not only underscores the importance of ensuring compliance with immigration laws and regulations prohibiting the employment of undocumented workers, but it also creates a Catch-22 for employers who, despite their best efforts to comply with those laws, find themselves the subject of an unfair labor practice charge involving undocumented workers. Those employers must choose between two equally unappealing options. The first is notify the NLRB of the employee’s immigration status to ensure that it is not ordered to reinstate an undocumented worker. However, the NLRB might report the immigration violation to Homeland Security and seek an alternative, but more substantial remedy for any unfair labor practice. The second option is simply to remain silent regarding the employee’s immigration status, but face the possibility of an NLRB order requiring it to reinstate an undocumented worker and thus further violating immigration laws. To avoid such a scenario, employers should regularly audit their I-9 and E-Verify policies to confirm they are being strictly enforced, and should immediately consult legal counsel before responding to any unfair labor practice charge potentially involving undocumented workers.