Although many employers are not aware of it, undocumented workers are eligible for protection under the National Labor Relations Act (NLRA or “the Act”), the federal statute that enables union organizing. As a practical matter, undocumented workers have not been much of a focus for the National Labor Relations Board (NLRB or “the Board”) in its efforts to curb unfair labor practices, nor for unions engaged in organizing activities. Based on recent NLRB actions, however, this could be changing, making undocumented workers a new focus for the NLRB and a new ally for union organizers.

Immigration status is irrelevant to the Board’s determination of whether a violation under the Act has occurred, but immigration status does affect available remedies.  An employer who terminates an employee as a result of union activity violates the NLRA and can be ordered to reinstate the employee and pay back wages – except when the terminated employee is an undocumented worker. Federal immigration laws prohibit such remedies to an individual without lawful employment status.  As a result, undocumented workers have no real incentive to report employers for possible NLRA violations.  If anything, they may feel discouraged from doing so because if an investigation of the charges leads to evidence that they are without proper work authorization, they could be subject to deportation or removal, or at a minimum, the possibility of losing their jobs.

The Board may have found a way to reverse that. There are an estimated 12 million undocumented immigrants in the U.S., many of whom are employed. This is a population the NLRB is interested in and a population that unions could certainly afford to have on their side.  A recently issued memorandum from the NLRB’s General Counsel to all Regional Directors specifically states the Board will help determine whether undocumented workers who file unfair labor practice charges are eligible for U visas (for victims of certain criminal activity), T visas (for victims of human trafficking), or deferred action under the President’s executive action programs and also help facilitate those processes through inter-agency cooperation. Therefore, undocumented employees who may have previously made no claim of unfair labor practices out of fear that their immigration status would be implicated may now consider asserting NLRA violations believing that the NLRB will assist them in obtaining lawful employment status.

In these immigration-implicated cases, where the remedies of back pay and reinstatement are not available, the General Counsel further outlined the alternative remedies the Board will seek against employers, including enhanced notice requirements, training requirements, and reimbursement of organizing or bargaining expenses, among others.  It also threatens engagement with the Department of Justice’s Office of Special Counsel and the Department of Homeland Security, which could find other legal violations outside of the NLRA.

In addition to the possibility of assisting undocumented workers with visas, the NLRB has entered into an agreement with Mexico (among other countries) to train immigrants about their rights under U.S. employment laws, including unionizing rights under the NLRA. The agreement makes no distinction between documented or undocumented workers.

This combination of the Board’s new effort to train undocumented workers on asserting rights under the NLRA and its policy on assisting undocumented workers obtain a visa status has created an obvious Catch-22 for employers who are otherwise seeking to comply with immigration laws. Employers who discover that employees are not authorized for employment must terminate employment under federal immigration law or be subject to potentially severe civil (and in some cases, criminal) penalties. Where those terminated employees then claim discrimination under the NLRA, however, the employers could be subject to charges of unfair labor practices. Employers must carefully consider all of these implications in response to unionizing activities and preventative training.

Where employees are terminated for lawful immigration-related reasons, it is critical that employers be prepared to demonstrate that basis for termination.  All employers must remain diligent in their I-9 employment eligibility compliance efforts and should scrutinize their policies and procedures for addressing circumstances that may indicate that an individual is not authorized for employment.  Any new or existing policy must be followed consistently, and appropriate documentation should be retained that explains the basis for the company’s actions. Employers should consult with legal counsel regarding these policies, including consideration of voluntary participation in E-Verify and development of strategies for related issues.