Immigration Recheck Was Unlawful Scare Tactic, ALJ Finds

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By Lawrence E. Dubé

A California company violated federal labor law by “rechecking” the work authorizations of warehouse employees during a union organizing campaign, a National Labor Relations Board administrative law judge ruled July 19 ( Cinelease, Inc. , 2017 BL 249600, NLRB ALJ, No. 31-CA-166005, 7/19/17 ).

The ALJ’s decision may be a dangerous precedent if it discourages companies from pursuing “robust” efforts to comply with federal immigration laws, William A. Stock, an immigration lawyer and past president of the American Immigration Lawyers Association, told Bloomberg BNA.

However, he said, immigration status can’t be used as a “cudgel” to intimidate employees. An employer balancing its obligations to comply with the Immigration Reform and Control Act and its duties under the National Labor Relations Act can be in a difficult position, Stock said, and any employer auditing its workforce must do so carefully.

ALJ Eleanor Laws said Cinelease Inc. didn’t show that federal immigration laws required the audit, which actually violated the rights of workers who are permanent U.S. residents.

Additionally, the administrative law judge said, there was ample evidence that the company launched the audit and announced it to employees in an effort to discourage their support for a Teamsters union local.

Immigration Check Used to Oppose Union

“Normally,” Laws wrote, “asking employees to periodically provide paperwork to show they are eligible to work in the United States is not only lawful, but is required by immigration law.”

However, the ALJ said Cinelease, which rents equipment to the motion picture industry, didn’t have any regular practice of rechecking immigrants’ work authorizations. When the company began checking employees and demanding additional documentation shortly before a vote on representation by Teamsters Local 399, the action was unprecedented, Laws said.

Laws said the company failed to explain the timing of the immigration audit, the audit was incomplete and unconvincing, and it rechecked employees who were permanent U.S. residents holding “green cards.” Federal law and regulations prohibit such reverification of permanent residents.

Laws found the employer unlawfully threatened employees by telling them their work authorizations were being rechecked as well as by rechecking them and requiring employees to present additional documentation of their authorization to work in the U.S. The ALJ recommended the board order the company to cease rechecking immigration status in any manner that violates the NLRA. She also found that the company engaged in other serious unfair labor practices and recommended the board order Cinelease to recognize and bargain with Local 399.

Systematic Compliance Effort Needed

Stock, who practices immigration law in Philadelphia at Klasko Immigration Law Partners LLP, said employers are expected to ensure that the documentation supporting an employee’s work authorization has not expired or become obsolete.

Noting green cards are permanent documents that can’t lawfully be “rechecked” by employers, Stock said the Cinelease decision suggests employers may just need better training about when and how to conduct immigration audits.

“The take-away,” Stock said, is that an employer’s in a much better position to defend an audit of work authorizations if it has an established system in place for reviewing immigration compliance.

Steven M. Swirsky of Epstein Becker & Green in New York agreed that employees are in a “real quandary” in attempting to comply with both IRCA and the NLRA. There is a duty to reverify work authorizations in some situations, but the key, particularly in a large company, may be coordinating immigration compliance activities so they don’t conflict with situations like union organizing campaigns, Swirsky told Bloomberg BNA.

Management has no choice but to comply with multiple laws, Swirsky said, but must “think things through” before acting.

‘One of the More Overt Cases’

Ryan Spillers of Gilbert & Sackman in Los Angeles represented Local 399 in the Cinelease case. Spillers told Bloomberg BNA that employers undoubtedly have a right to comply with immigration laws and regulations, but “there is nothing more insidious than exploiting immigration status to discourage unionization.”

Spillers said Cinelease’s retaliatory use of an immigration investigation was “one of the more overt cases” he has seen, but similar abuses are still a problem with many employers. He cited union organizing of carwash workers in Los Angeles, where employees have complained about immigration-related threats being used to discourage union support.

The union lawyer said some employers have developed reminder systems that allow them to stay on top of immigration compliance while documenting that the timing of compliance reviews was dictated by company policy or practice rather than union activity.

Cinelease representatives didn’t immediately respond to a request for comment on the decision.

NLRB attorneys Yeerik Moy, Rudy L. Fong Sandoval, and James Racine in Los Angeles represented the NLRB’s general counsel. Bonnie Glatzer and Irene School-Tatevosyan of Nixon Peabody LLP in San Francisco represented Cinelease Inc.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@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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