An Administrative Law Judge (ALJ”) of the National Labor Relations Board (“NLRB”) recently ruled that an employer had to bargain with its union over efforts to correct I-9 deficiencies and to enroll in E-Verify. After undertaking an internal audit of its I-9 forms, a company found substantial noncompliance with I-9 form completion requirements.  Therefore, the company concluded that it had to request the completion of a new I-9 form and the presentation of new acceptable documentation to verify employee identities and U.S. work authorizations from approximately 95% of its workforce.

In July 2019, the company notified the affected employees by email of the need to submit a new I-9 form through its electronic vendor.   In response, the union made several information requests related to the company’s notification, including a list of employees who had incomplete or incorrect I-9 forms.  Claiming that the union had no right to such information, the company refused to provide this detailed list.  In response, the union demanded to bargain over the effects of the company’s decision to request the completion of new I-9 forms by its employees.

The company proceeded with its IRCA compliance efforts by requesting the completion of a new electronic I-9 form by employees who had either no form or a deficient form on file.  The company ultimately advised the union that five employees were at risk of being removed from its payroll because of their non-compliance with I-9 form requirements.  Because the company would not agree to the union’s demands, the union filed a NLRB charge claiming that the company’s actions violated Section 8(a)(1) and (5) of the National Labor Relations Act (“NLRA”).

The ALJ determined that the company’s requirement that its employees complete a new I-9 form was a mandatory subject of collective bargaining and stated, “ … [The company’s] requirement that employees complete new I-9 forms clearly affects the terms and conditions of employment, as employees who (for whatever reason) have difficulty completing the I-9 form risk losing their jobs, among other consequences.”  The ALJ also rejected the company’s position that it had no duty to bargain over the effects of its decision to require the completion of new I-9 forms.  In reaching this conclusion, the ALJ commented:

Here, there is no dispute that … [the company] had to comply with IRCA.  That obligation, however, did not preclude effects bargaining, as there are issues related to IRCA compliance where … [the company] and the Union had room to negotiate, such as: the amount of time … [the company] would give an employee to obtain and present documents that establish the employee’s identity and employment authorization; the process for reviewing, copying and storing documents…; and the process that would apply to employees who had difficulty presenting appropriate documentation in the allotted timeframe.

The ALJ also decided that the company had a duty to provide the union with the information it had requested about the employees who would be required to complete a new I-9 form.  It further found that the union’s request that the company specify the deficiencies in the employees’ previously completed I-9 form was both “reasonable” and “appropriate, particularly given the fact that [the company] previously [in a prior 2013 audit of its I-9 forms] had required employees to submit new I-9 forms because the forms employees had submitted while working for [the company’s] predecessor could not be located.”

In an earlier decision in Ruprecht Co., 366 NLRB No. 179 (2018), a three-member panel of the NLRB determined that a U.S. unionized employer cannot voluntarily and unilaterally decide to enroll in and implement the E-Verify program without violating Section 8(a)(5) of the NLRB.  Instead, the NLRB ruled that because E-Verify affects the terms and conditions of employment, the employer must give the union prior notice and the opportunity to bargain over such a decision and its implementation.  The NLRB ordered the unionized employer to rescind its participation in E-Verify and bargain in good faith with the union regarding its participation in the program, if requested to do so by the union.

Key Takeaways for U.S. Employers:

  • ICE has stepped up its enforcement efforts in terms of monitoring U.S. employers’ compliance with the Form I-9 requirements under IRCA.
  • All U.S. employers have an obligation to comply with the Form I-9 requirements set forth in IRCA, regardless of whether or not their workforce is unionized.
  • U.S. employers that do have a unionized workforce are obligated to bargain with the union in the event that:
    • The employer wishes to enroll voluntarily in E-Verify; or
    • The employer has identified I-9 compliance issues that require unionized employees to complete new I-9 forms and produce acceptable documentation for verification of their identity and U.S. work authorization.
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Photo of Brenda A. Eckert Brenda A. Eckert

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination…

Brenda Eckert practices in the areas of civil litigation, civil rights, employment law litigation, and employment-based immigration law before state and federal courts and administrative agencies. She has successfully defended public and private sector employers against employment law claims, including contract claims, discrimination claims and related state tort claims.

Photo of Bradley Harper Bradley Harper

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green…

Bradley Harper is a member of the firm’s Immigration practice, where he advises clients on the immigration process, assists them with preparing and filing employer-sponsored immigration petitions including H-1B, L-1, O-1, and TN nonimmigrant visa types and EB-1, EB-2 and EB-3 immigrant visa/“green card” petitions, as well as with preparing and filing Responses to Requests for Evidence. He also provides general immigration advice to clients who have submitted or are preparing to submit family-sponsored immigrant visa (“green card”) petitions, adjustment of status applications, and applications to become naturalized U.S. Citizens.