The General Counsel of the National Labor Relations Board has instructed agency regional directors and other officials charged with investigating unfair labor practice charges to consider whether the immigration status of affected employees may affect the Board’s ability to proceed in litigation and fashion effective remedies.

On February 27, 2015, General Counsel Robert F. Griffin, Jr., issued a Memorandum (GC-15-03) providing updated procedures to be applied when immigration status issues may affect NLRB investigations and proceedings. The new procedures require Regions to contact the NLRB’s Division of Operations-Management at any point in the proceedings if they believe that someone’s immigration status may impair the Region’s ability to litigate or remedy a potential unfair labor practice. Operations-Management will assist Regions with possible interagency collaboration, consult on possible remedies, and provide NLRB-wide coordination.

Undocumented workers are “employees” within the meaning of the National Labor Relations Act, and their immigration status is not relevant to an unfair labor practice investigation. Consequently, Regions will not investigate nor determine a worker’s immigration status during such an investigation. However, action taken by an employer to comply with immigration laws may be a defense to an alleged violation of the NLRA and a Region may investigate appropriate facts bearing on the employer’s motivation.

The Memorandum counsels that interagency coordination may be appropriate if immigration status could impact a charge’s investigation or remedy. The potential discriminatee or witness may be eligible for a U or T visa, or deferred action from or assistance by the Departments of Justice or Homeland Security to permit an investigation to continue or for an appropriate remedy to be determined and enforced.

While undocumented workers are not eligible for back pay and reinstatement under the NLRA, the General Counsel urged the Regions to consider alternative remedies such as enhanced notice requirements, training of employees and supervisors regarding employee rights and employer responsibilities under the law, a bargaining order, union access to employee contact information, reimbursement of organizing or bargaining expenses, and other appropriate remedies. Further, Regions are encouraged to seek a Formal Board Settlement, which is a Board Order (and is often accompanied by a federal court judgment) in connection with which the General Counsel can seek judicial relief in the event of non-compliance with the settlement by the employer.

Enhanced remedies in the event of a violation of the NLRA are only one of the negative implications of an inaccurate initial determination. Please consult experienced counsel if you have any questions.