In a precedent-setting settlement with the NLRB, Pacific Steel Casting Company ("PSC"), a manufacturing company in Berkeley, California, announced that it had agreed to reinstate employees and pay all lost wages and benefits to employees terminated when PSC registered and started using the DHS's E-Verify Program.
This proceeding began in February 2011, when PSC was subject to a Form I-9 audit conducted by ICE. At that time, PSC voluntarily enrolled into the federal E-Verify program without notifying its unionized employees or Local 164B, their union chapter. Later, when Local 164B discovered this enrollment, PSC claimed that it was required to take such action because the company was a federal contractor. This claim turned out to be incorrect, but PSC continued to use E-Verify. The union then filed a charge with the NLRB claiming that PSC was required to, but did not, bargain over its enrollment into E-Verify because this changed the terms and conditions of employment.
PSC recently settled the union's charges. Under the terms of the settlement, PSC agreed to terminate its participation in the E-Verify program and to reinstate and provide back pay to all employees terminated while contesting a tentative nonconfirmation ("TNC") received from E-Verify, as well as those employees not given the opportunity to contest their TNCs. Under the rules governing the use of E-Verify, employees cannot be terminated if they contest a TNC unless the federal government issues a final confirmation ("FNC") that they lack work authorization. PSC also agreed to post, both physically and via the company's intranet, and to email to all employees a notice stating the employees' rights under the National Labor Relations Act, and to advise them that it would not refuse to bargain with the union over changes to wages, hours, and working conditions, and would notify the union and request bargaining before making any further changes.
This settlement represents a warning to unionized employers that they may need to review their collective bargaining agreements before deciding whether to enroll in E-Verify and, if they do enroll, that they need to follow the E-Verify rules regarding TNCs and FNCs.