Tuesday, June 19, 2012

E-Verify Precedent for Unionized Employers

According to the law firm of  Epstein Becker Green, there has been a precedent setting settlement between the National Labor Relations Board (NLRB) and the Pacific Steel Casting Company (PSC) that makes E-Verify subject to Collective Bargaining in unionized companies.

"This proceeding began in February 2011, when PSC was subject to a Form I-9 audit conducted by ICE. At that time, PSC voluntarily enrolled into the federal E-Verify program without notifying its unionized employees or Local 164B, their union chapter. Later, when Local 164B discovered this enrollment, PSC claimed that it was required to take such action because the company was a federal contractor. This claim turned out to be incorrect, but PSC continued to use E-Verify. The union then filed a charge with the NLRB claiming that PSC was required to, but did not, bargain over its enrollment into E-Verify because this changed the terms and conditions of employment.

PSC recently settled the union's charges. Under the terms of the settlement, PSC agreed to terminate its participation in the E-Verify program and to reinstate and provide back pay to all employees terminated while contesting a tentative nonconfirmation ("TNC") received from E-Verify, as well as those employees not given the opportunity to contest their TNCs. Under the rules governing the use of E-Verify, employees cannot be terminated if they contest a TNC unless the federal government issues a final confirmation ("FNC") that they lack work authorization."

Granted, PSC was not following the E-Verify rules correctly by terminating employees after a Tentative Nonconfirmation (TNC), but the precedent is noteworthy in that it appears that unionized employers may need to review their collective bargaining agreements before deciding to enroll in E-Verify.  

*Employers should consult their legal counsel in this area as we are only reporting information and not providing legal advice, express or implied.

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