The National Labor Relations Board recently took on the thorny issue of immigration, specifically how to handle immigration matters in the context of the compliance phase of unfair labor practice proceedings.

In the past the board has addressed the issue via rulings, but May 4 NLRB Associate General Counsel Anne Purcell took a new step, issuing casehandling instructions for regional office employees.

The memorandum follows a December 2011 ruling by NLRB that clarified the burdens of parties attempting to explore or litigate the immigration status of employees in such proceedings. In Flaum Appetizing Corp., 357 N.L.R.B. No. 162, 192 LRRM 1169 (2011) the board held 2-1 that an employer defending back pay claims of illegally discharged employees based on their immigration status must articulate a factual basis for claiming that the employees were ineligible for employment under federal immigration law.

Recently Flaum agreed to pay $577,000 in back pay and other compensation to 20 former workers to settle both the NLRB case and a related lawsuit (Romero v. Flaum Appetizing Corp., S.D.N.Y., No. 07 CV 07222, settlement agreement 5/6/12).

Purcell wrote in Memorandum OM 12-55 that NLRB regional directors should demand a "full accounting" of any immigration-related evidence a respondent expects to offer in an NLRB proceeding, and board attorneys should file prehearing motions for the particulars of an employer's defense if it is not adequately stated in an affirmative defense.

"A respondent may not use the compliance phase as a means to fish for disabling employee conduct under IRCA, i.e., no legal authorization for its employees to work in the United States," Purcell wrote.

The associate general counsel also told regional offices they should oppose the improper use of subpoenas to harass employees, and should consult NLRB's Division of Advice in appropriate cases to determine whether an employer's misuse of NLRB subpoenas was itself an unfair labor practice under Section 8(a)(1) of the National Labor Relations Act.

In Other Developments:  

• The Justice Department May 10 filed a civil lawsuit in federal court against Maricopa County, the Maricopa County Sheriff's Office and Sheriff Joseph Arpaio, alleging they engaged in unconstitutional and unlawful actions by discriminating against Latinos and immigrants. Only days earlier Arpaio announced that his deputies conducted their 60^th employer sanctions/identity theft operation.

• The State Department published an interim final rule (77 Fed.Reg. 27,593) that aims to change the regulatory requirements of the Summer Work Travel Program in order to protect participants' health and welfare and to reinforce the program's cultural exchange aspects.

• Bloomberg News reports that a group of Silicon Valley investors are using a cruise ship docked off the coast of Northern California to house technology startups. The ship will remain far enough off shore to avoid U.S. immigration laws that would otherwise make it difficult for foreign professionals to come to the United States.