Facing an ICE Audit? Labor Board May Also Come Calling

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By Laura D. Francis

Employers seeking to comply with the Trump administration’s immigration enforcement efforts could face another compliance challenge: federal labor law.

Verifying employees’ work authorization often is “innocent” and the employer is just trying to comply with immigration law, attorney David Grunblatt of Proskauer in Newark, N.J., told Bloomberg BNA. But engaging in verification when employees are trying to form a union could be seen as a “sneaky way of trying to intimidate” workers, he said.

The Ruprecht Co., for example, got in hot water with a National Labor Relations Board administrative law judge last year after its handling of an Immigration and Customs Enforcement audit.

During ongoing negotiations over a contract with UNITE HERE, the Chicago-area meatpacker enrolled in the E-Verify electronic employment verification system in response to ICE’s audit of its I-9 employment verification forms.

The ALJ found that the company violated the National Labor Relations Act by enrolling in E-Verify without bargaining with the union. Violations also included transferring fired undocumented immigrants’ work to contractors without bargaining, dealing directly with the fired workers regarding their severance, and failing to provide the union with the list of employees whose employment verification documents were found to be suspect.

Could Be ‘Smokescreen’

Employers must ensure their new hires are authorized to work, a requirement under the 1986 Immigration Reform and Control Act. The law gave birth to the I-9 form, which employers must fill out and present to Immigration and Customs Enforcement when asked.

But “right from the beginning of IRCA,” there was a recognition of an “inherent conflict” between checking work authorization and protecting workers’ rights, Grunblatt said.

“The law’s pretty clear” that an employer that double-checks workers’ status and makes immigration-related threats in response to union organizing is engaging in unlawful coercion under the National Labor Relations Act, former National Labor Relations Board Chairman Wilma Liebman told Bloomberg BNA.

If there’s reason to believe a review of I-9 paperwork is a “smokescreen” to cover up anti-union activity, the NLRB will find a violation, said Liebman, who served as board chairman from 2009 to 2011.

Even if an employer claims innocence, the timing can seem “pretty fishy” if the employer is lax about its I-9s until after a union organizing campaign is under way, she said.

Liebman pointed to a 2001 NLRB decision that found an NLRA violation when a company fired employees for lack of work authorization immediately after a union election. I-9 compliance had been the sole responsibility of a human resources manager, but the company’s general manager took it upon himself to check workers’ papers after receiving an anonymous note containing the names of several Hispanic employees.

In another case, an NLRB administrative law judge found that an employer violated the NLRA when it fired four employees after they were run through the E-Verify electronic employment verification system following an attempt to form a union. The NLRB said the workers had to be reinstated without being checked in E-Verify, although a federal judge in Arizona disagreed.

Cost-Benefit Analysis

Employers should perform a cost-benefit analysis before reviewing their I-9s during union organizing, Grunblatt said. For one, some ICE officers aren’t keen on employers doing a last-minute self-audit in response to an agency notice of an impending inspection, he said.

And “you’re just trying to mitigate the damage” anyway, Grunblatt said. If an employer doesn’t complete its I-9 forms correctly, fixing them after the fact doesn’t undo the violation. It just shows good faith.

There isn’t much of a “down side” to letting ICE perform the inspection and dealing with the consequences afterward, Grunblatt said. The employer can always tell ICE that the union prevented it from taking any earlier action against employees with suspect work authorization.

ICE generally won’t conduct an enforcement activity if there is a “labor dispute,” under a 2011 memorandum of understanding between ICE, the NLRB, the Labor Department, and the Equal Employment Opportunity Commission—and an addendum. That MOU remains in effect, an ICE spokeswoman told Bloomberg BNA Sept. 7.

But a labor dispute generally isn’t discovered until after ICE has started its investigation, and the agency “very rarely” suspends an audit in this context, according to a “tool kit” from the AFL-CIO. "[W]e expect a return of more aggressive workplace enforcement actions, including raids that result in the immediate arrest of workers,” the labor federation said.

UNITE HERE was supporting workers renegotiate their contract at Ruprecht when ICE conducted its audit, said Neidi Dominguez, national strategic organizing coordinator with the International Union of Painters and Allied Trades. And yet ICE ran the names of employees that the company gave the agency to see if they were authorized to work, she told Bloomberg BNA.ICE also “went straight to people’s homes” to arrest those union undocumented workers, said Dominguez, who worked on the AFL-CIO tool kit when she was with the labor federation.

Increase in Enforcement?

There does seem to be “something of an increase” in I-9 inspections, and “they also seem to be more aggressive,” Grunblatt said. The government is “more willing to use harsher tools” to punish immigration violations, such as referring noncompliant companies for debarment from federal contracts.

But “the balance is shifted to some extent,” as the Trump administration has taken a more business-friendly approach to labor law, Grunblatt said. “On a practical level, how that would filter its way down into day-to-day cases is hard to say.”

A representative for the NLRB declined Bloomberg BNA’s request for comment.

ICE, however, says it hasn’t changed its tactics.

“ICE’s Homeland Security Investigations (HSI) continues to employ a comprehensive worksite enforcement strategy that promotes national security and targets employers who violate employment laws or engage in abuse or exploitation of workers,” ICE spokeswoman Danielle Bennett told Bloomberg BNA in an email. “ICE’s worksite enforcement strategy focuses on the criminal prosecution of employers who knowingly hire illegal workers. In addition to criminal prosecutions, we continue to fine employers who hire an illegal workforce,” she said.

The data show that I-9 audits are down significantly for the current fiscal year, which ends Sept. 30. Through June 24, there have only been 420 I-9 audits during FY 2017, compared with 1,279 for all of FY 2016, according to data that ICE provided to Bloomberg BNA. I-9 audits hit a peak in FY 2013, with 3,127.

Some advocates believe that ICE won’t be conducting its work-site enforcement at actual places of work, Dominguez said. Rather, they feel that the agency will rely on federal, state, and local databases to arrest undocumented immigrants at their homes, she said.

Dominguez also said she’s preparing organizers at IUPAT to respond to more workplace raids and I-9 audits.

More of the Same

Liebman isn’t so sure of a change on the labor law side.

Labor law has tended to favor employers for years, she said. Many employers consider the penalties for unfair labor practices just the “cost of doing business” rather than a real deterrent, she said.

That’s largely because the remedies aren’t all that costly, Liebman said. The Supreme Court has ruled that undocumented workers can’t get back pay for NLRA violations, leaving as the only remedy a requirement that the employer post a notice that it violated the law and a cease and desist order.

“It does nothing for the guy who was fired” for union organizing and who happens to be undocumented, she said. “These issues make union organizing in workplaces with a lot of immigrant workers very difficult,” Liebman said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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