If you have been a steady reader of this blog by now you know that the National Labor Relations Act (NLRA or the Act) protects the rights of both union and non-union employees.

You may be surprised to learn, however, that the Act also protects the rights of undocumented workers to engage in concerted activity. Employers can find themselves in hot water with the National Labor Relations Board (NLRB or the Board) even if the impacted employees are not eligible to work lawfully. Until now, the remedy in this situation was limited to postings and similar rebukes, because undocumented employees were not entitled to back pay or reinstatement.

The Board was concerned that undocumented workers were not coming forward to report Unfair Labor Practices (ULP) because there was no job protection or financial enticement, and because there was a real risk that the undocumented status would be discovered in the NLRB process.

To counter this deterring effect, the Board’s General Counsel issued GC Memorandum 15-03, which states that the Board will provide visa assistance to undocumented workers who file ULP Charges. The NLRB also entered into agreements with Mexico, Ecuador and the Philippines to encourage these countries to train immigrants about the rights granted to workers under U.S. employment laws, including rights under the NLRA.  Notably, these agreements make no distinction between documented and undocumented workers.

The Board’s General Counsel’s efforts to increase reporting by undocumented workers may put some employers in a tough spot. Employers who discover that an employee does not have proper work authorization must terminate employment under Federal immigration law or face severe civil, and in some cases, criminal penalties. At the same time, terminating an employee to comply with immigration laws can be challenged as an unfair labor practice under the NLRA.

When terminating undocumented workers to comply with Federal immigration law, employers must document that the basis for the termination is not pretextual. Employers should review their I-9’s regularly, and should also consider enrolling in E-Verify for assistance in determining worker eligibility.  Last, if an employer has a policy in place that addresses undocumented workers, that policy must be followed consistently.