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NLRB General Counsel Updates Procedures for Handling Immigration Status Issues In ULP Cases
Practical Law Legal Update 1-602-6705 (Approx. 7 pages)
NLRB General Counsel Updates Procedures for Handling Immigration Status Issues In ULP Cases
by Practical Law Labor & Employment
| Published on 03 Mar 2015 • USA (National/Federal) |
The National Labor Relations Board's (NLRB) General Counsel issued a memorandum updating its procedures for handling immigration status issues in unfair labor practice (ULP) proceedings and investigations. The memorandum requires NLRB regional offices to contact the NLRB's Division of Operations-Management promptly once aware that immigration status issues may affect the NLRB's ability to litigate or remedy a ULP and discusses procedures in the investigation and liability stages of a matter. It also provides guidelines for fostering interagency cooperation, exploring alternative ULP remedies and obtaining formal settlements in ULP cases when immigration status issues arise.
The NLRB's General Counsel issued a Memorandum updating its procedures for handling immigration status issues in unfair labor practice (ULP) proceedings and investigations. The memorandum requires the regional offices to contact the NLRB's Division of Operations-Management promptly once aware that immigration status issues may affect the NLRB's ability to litigate or remedy a ULP and discusses procedures in the investigation and liability stages of a matter. It also provides guidelines for fostering interagency cooperation, exploring alternative ULP remedies and obtaining formal settlements in ULP cases when immigration status issues arise.
Background
Under Hoffman Plastic Compounds, Inc. v. NLRB, the NLRB is foreclosed from awarding backpay and reinstatement in ULP cases to individuals who are not authorized to work in the US (535 U.S. 137 (2002); see Legal Update, NLRB Rules That It Cannot Award Backpay to Undocumented Workers). However, the NLRB has expressed a commitment to protecting undocumented workers and remedying ULPs against them in ways that the Supreme Court did not foreclose in Hoffman. The General Counsel's memo reaffirms this commitment.
The General Counsel directs the NLRB regional offices to contact the NLRB's Division of Operations-Management, where ULP cases appear to implicate immigration status issues. The Division of Operations-Management will:
- Provide technical assistance.
- Determine whether interagency engagement could assist in enforcing the NLRA.
- Discuss with the regional office or request that the regional office ask the Division of Advice whether certain additional remedies may be appropriate.
- Coordinate the agency's response to the immigration status issues.
The memorandum also addresses strategic planning to deal with immigration status issues in:
- ULP investigations and the liability stages of ULP cases.
- Engaging other agencies.
- Seeking or enforcing remedies.
- Formal settlements.
Immigration Status Issues During the Investigation and Liability Stages of a ULP Case
At the investigation and merit stages, NLRB regional offices must:
- Continue to explain to parties, witnesses and individuals alleging discrimination that an individual's immigration status is not relevant to the investigation.
- Make merit determinations without regard to any individual employee's immigration status.
- Limit the inquiry at the merit stage to the employer's motivation for the adverse action, even when the employer's defense to the adverse action rests on an assertion that the employer was trying to comply with the immigration laws.
Interagency Engagement
The NLRB's Division of Operations-Management will work with the regional offices to determine whether:
- Potential witnesses and victims of discrimination (persons who suffered adverse employment actions for engaging in protected concerted activity, union activity or participating in NLRB proceedings) could be eligible for U or T visa status. The memorandum refers to Operations Memo 11-62 (OM 11-62) for a fuller discussion of the NLRB's positions on these visa classifications.
- To refer the case to the Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) pursuant to the NLRB's Memo of Understanding with the OSC (see Legal Update, DOJ and NLRB Agree to Share Information and Coordinate Investigations).
- To coordinate with the Department of Homeland Security's enforcement operations.
Remedies
The traditional NLRB remedies for unlawful terminations, backpay and reinstatement, may not be provided to persons who are unauthorized to work in the US. However, the NLRB (specifically, the Division of Operations-Management and the Division of Advice) will consider additional remedies and identify alternatives to traditional remedies for those workers who are subject to ULPs, including:
- Notice reading (Fieldcrest Cannon, Inc., 318 N.L.R.B. 470 (1995)).
- Publication of the notice in newspapers or other forums or both (Pac. Beach Hotel, 361 N.L.R.B. slip op. 65, (Oct. 24, 2014); see Legal Update, NLRB Imposes Landmark Remedies for Employer's Egregious Unfair Labor Practices).
- Training for employees on their rights under the NLRA.
- Training for supervisors or managers on compliance with the NLRA.
- A bargaining order under NLRB v. Gissel Packing Co. (395 U.S. 575 (1969)).
- Providing unions with access to employee information (J.P. Stevens & Co., Inc., 244 N.L.R.B. 407 (1979)).
- Reimbursing organizing or bargaining expenses (Texas Super Foods, 303 N.L.R.B. 209 (1991)).
- Consequential damages (Pac. Beach Hotel, 361 N.L.R.B. slip op. 65, (Oct. 24, 2014); see Legal Update, NLRB Imposes Landmark Remedies for Employer's Egregious Unfair Labor Practices).
- Instatement of a qualified referred candidate (A.P.R.A. Fuel Oil Buyers Group, 320 N.L.R.B. 408 (1995)).
Formal Settlements
In cases where immigration status issues may affect the NLRB's ability to litigate or remedy a ULP, the General Counsel directs NLRB regional offices to seek a formal settlement. Federal courts can intervene to order an employer to comply with the terms of a settlement to which it agreed even if the NLRB could not order remedies identical to the settlement terms to resolve ULPs under Hoffman.
Finally, the Division of Operations-Management must coordinate with NLRB regional offices and other NLRB divisions to devise a training program on best practices for handling cases with immigration issues.