On February 27, 2015, National Labor Relations Board (NLRB) General Counsel Richard F. Griffin, Jr. injected the NLRB into the national debate regarding border security, the rights of undocumented workers and their families, and the appropriate use of taxpayer funds. In cases in which employee immigration status issues are raised during Board proceedings, General Counsel (GC) Memorandum 15-03 admonishes all NLRB regional offices to consider seeking extraordinary remedies against employers and exploring with U.S. immigration agencies whether special visas or discretionary relief can be provided for undocumented workers, their families, and witnesses to shield them from removal (deportation) from the United States.

In addition, regional offices are encouraged to refer discrimination charges against employers arising from immigration law compliance processes to the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (DOJ) under a 2013 memorandum of understanding between the NLRB and DOJ and, where appropriate, engage with the U.S. Department of Homeland Security (DHS) regarding its enforcement activities. This unprecedented action was taken by the General Counsel without explanation or convincing rationale.

Why Has the NLRB Addressed Undocumented Worker Status?

In Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), the Supreme Court of the United States refused to enforce an NLRB order awarding backpay to an undocumented worker. The Court concluded that awarding backpay to an individual who was not legally eligible to work conflicted with the Immigration Reform and Control Act of 1986 (IRCA). The Court observed that awarding backpay “for a job obtained in the first instance by [the worker’s] criminal fraud . . . not only trivializes the immigration laws, it also condones and encourages future violations.” Regardless of a worker’s immigration status, however, the Court pointed out that the NLRB could pursue other traditional remedies such as notice posting and cease and desist orders.

In reaction to Hoffman Plastic, in GC Memorandum 02-06, the General Counsel conceded that regions should refrain from seeking (1) backpay for unlawfully discharged undocumented workers, and (2) reinstatement for undocumented workers when an employer establishes that it would have not hired or retained the individual due to his or her immigration status. Memorandum 02-06 further provided that the NLRB should presume that all employees are lawfully authorized to work, and prohibited NLRB personnel from conducting sua sponte investigations into workers’ immigration status. Thus, the NLRB takes no action to enforce federal immigration laws even in situations where workers’ undocumented status is uncontradicted or conceded by the worker.

A 2011 Memorandum, OM 11-62, further instructed NLRB regions across the country to investigate whether undocumented workers in an unfair labor practice case may be eligible for T or U Visas, so that they may remain in the United States to testify. Both types of visas provide undocumented workers with work authorization, family member visas, and a path to becoming lawful permanent residents/citizens. With millions of undocumented workers waiting for immigration reform, the possibility of a visa and pathway to lawful status for a worker’s entire family can be a powerful incentive for initiating or participating in NLRB proceedings.

GC Memorandum 15-03

In unfair labor practice cases where worker immigration issues are raised, GC 15-03 now mandates that NLRB regional offices continue the current practice of explaining to workers that undocumented status is not relevant to the NLRB’s investigation of the merits. When an employer asserts that it discharged a worker in order to comply with federal immigration law, the NLRB will not investigate or make any determination regarding the worker’s immigration status. The focus of the NLRB’s investigation is purely on whether the discharge or discipline issued by the employer violated the National Labor Relations Act (NLRA).

GC 15-03 goes much further than any prior NLRB directive involving undocumented workers by instructing regions to consider extraordinary remedies historically reserved for the most egregious unfair labor practices. The remedies that may now be imposed upon employers include

  • reading the Notice to assembled groups of employees;
  • publication of the notice in newspapers;
  • mandatory NLRA training for supervisors and managers;
  • Gissel bargaining orders;
  • union access to employee contact information;
  • reimbursement of union organizing or bargaining expenses;
  • consequential damages;
  • instatement of a qualified referred candidate; and
  • any other remedies that a union or charging party believes may be appropriate.

Regions are also instructed to seek formal settlements in unfair labor practice cases involving undocumented workers. This instruction provides the NLRB with the ability at some point in the future to institute contempt charges in federal court against employers accused of additional unfair labor practice charges. Additionally, NLRB regions now have a specific mandate to actively engage with the DHS and the DOJ to have employers investigated and prosecuted for alleged immigration law violations. Even if an employer had no prior knowledge that it had inadvertently hired undocumented workers, this mandate now almost guarantees a subsequent costly DHS or DOJ compliance investigation when an employer asserts to the NLRB that compliance with immigration laws forced the company to take specific employment actions. The potential fines arising from such DHS or DOJ investigations can be quite significant and are wholly unrelated to the underlying unfair labor practice claim. Thus, GC 15-03 provides a disincentive or deterrent for employers to even raise the issue of undocumented immigration status in NLRB proceedings.

Key Takeaways for Employers

Given the national attention directed to border security and President Obama’s controversial executive action on immigration, suspending enforcement of particular immigration laws it is not mere coincidence that the current NLRB has entered the fray on the side of undocumented workers and decidedly against employers. Indeed, there is no indication in GC 15-03 that unfair labor practices involving undocumented workers have increased over the years or that such workers are reluctant to join unions, file unfair labor practice (ULP) charges, or testify in NLRB proceedings. In fact, many unions actively organize and cater to undocumented workers.

Applying the most aggressive remedies available against employers under the NLRA simply because a case involves an undocumented worker accords preferential treatment to such cases. Moreover, the failure of the General Counsel to explain in a transparent manner the factual basis for this significant initiative suggests an agency agenda unrelated to evenhanded enforcement of the labor laws. Assisting undocumented workers and their families to obtain T or U visas and a pathway to lawful status may very well increase the number of frivolous ULP charges filed against employers. Finally, the NLRB’s threat to engage the Department of Homeland Security or the Department of Justice is clearly designed to make employers reluctant to assert a defense based upon worker immigration status. Employers should consult with labor and immigration counsel to ensure a coordinated approach to any unfair labor practice charge potentially involving undocumented workers.