By: Samuel Sverdlov and Howard Wexler

Seyfarth Synopsis: The E-Verify program has become a controversial topic in the political arena and throughout workplaces nationwide.  Last month, the NLRB held, amongst other things, that an employer violated the NLRA by unilaterally enrolling in the E-Verify program without first bargaining with the union.

Immigration law has long been at the forefront of political discourse in the United States.  One question that employers continue to grapple with is whether they should enroll in  E-Verify — a U.S. Department of Homeland Security website that allows employers to determine whether employees are eligible to work in the United States.  The NLRB’s recent decision in  The Ruprecht Company only complicates matters as it held than an employer committed an unfair labor practice when it failed to first bargain with its employees’ union prior to enrolling in E-Verify.

By way of background, in January 2015, a meatpacking company received a subpoena from ICE requesting documents regarding its employee verification process.  Following the receipt of the subpoena, the company unilaterally enrolled in E-Verify.  A month later, the union contacted the company regarding rumors of an ICE audit, which the company confirmed.  Shortly thereafter, ICE informed the company via letter that it apprehended 8 of its employees who were deemed unauthorized to work in the United States.  The company informed the union of the letter, and the union requested a copy, which the company provided with the names redacted.  The company refused to provide an unredacted copy until it had an opportunity to confer with counsel.  (The company later received another letter from ICE regarding 194 additional employees who were also deemed unauthorized to work in the United States.)  The company thereafter informed the union that it a confidentiality agreement to provide the unredacted letters.  Two weeks later, the company provided the union with a draft confidentiality agreement, which the union did not sign.  The union did not provide a copy of a draft confidentiality agreement at any time.  In the interim, the company began terminating bargaining-unit employees deemed unauthorized to work in the United States.  The union thereafter filed ULP charges against the employer arguing that the company’s enrollment in E-Verify and refusal to provide the unredacted ICE letters violated the NLRA.

With respect to E-Verify, the Board held that the company’s unilateral enrollment in the E-Verify program “compromised the union’s ability, and the [company’s] incentive, to engage in the give-and-take process with respect to E-Verify by changing the starting point for bargaining.  Once the [company] enrolled in the program, it had the greater leverage.”  Consequently, the Board ordered the company to withdraw from the E-Verify program at the union’s request.

With respect to the ICE letters containing bargaining-unit employee names, the Board held that the company violated the NLRA by withholding the letter.  The Board held that the names of the employees are relevant to the union’s representative duties.  Further, even if the names of the employees are entitled to confidentiality protections, the company “did not timely assert a confidentiality interest or propose a reasonable accommodation and engage in accommodation bargaining.”  Specifically, the Board held that “the party asserting confidentiality has the burden of proposing the accommodation.”  Thus, it was untimely for the company to wait two weeks to send the union a draft confidentiality agreement because the delay “hampered any ability the [u]nion may have had to timely assist adversely affected employees.”  As a result, the Board ordered the company to provide the unredacted ICE letters to the union.

Ruprecht serves as an example of the intense scrutiny an employer faces during an ICE audit.  Not only does the employer have to defend itself in the face of a government investigation, but the company’s actions are also being closely monitored by both its workforce and the public at-large.  Mistakes can lead to ULP charges, public backlash, and more.  Following Ruprecht, employers with unionized workforces should be cautious.  To that end, employers should consult with labor and immigration counsel when considering enrollment in E-Verify, or during any inquiry by the government regarding the citizenship of their employees.