A recently released advice memorandum from the NLRB's associate general counsel, division of advice, considered whether an employer violated Section 8(a)(5) of the NLRA by unilaterally enrolling in E-Verify. Specifically, the associate general counsel considered whether:

The employer, Pacific Steel Casting Co. (Pacific) designs and manufactures steel casings at its California factory. Pacific does business with a number of Federal contractors via purchase orders. Its purchase orders do not reference E-Verify or any related executive orders or regulations. Pacific's production and maintenance employees have been represented by a union and covered by a collective bargaining agreement (CBA) that has been renewed, for several decades. The latest CBA was to expire in March 2011. The parties began bargaining for a successor CBA in February 2011.

In a letter dated February 17, 2011, the DHS informed Pacific that it would conduct an audit of Pacific's I-9 forms on February 23. DHS agents retrieved documents from Pacific's facility on February 23.

On February 23, Pacific entered into a Memorandum of Understanding with DHS, voluntarily agreeing to enroll in the E-Verify program. Pacific did not give the union advance notice of its decision to participate in E-Verify. Only federal contractors whose commercial contracts contain the Federal Acquisition Regulation (FAR) E-Verify clause, and their qualifying subcontractors, are required to participate in the E-Verify program. Qualifying subcontracts are those:

Subcontractors that do not provide any services and only provide supplies under their subcontracts are not subject to the E-Verify Federal contractor rule. For more information about E-Verify, see Practice Note, E-Verify for Employers: Best Practices.

In late February 2011, Pacific notified the union of the DHS audit. The union objected to the fact that Pacific had provided information to DHS as a result of the audit without notifying the union. In March and April, Pacific and the union had a series of discussions regarding:

On May 5, the union sent Pacific a letter that requested bargaining over any potential implementation of E-Verify. In a letter dated May 11, Pacific:

On June 3, the union sent a letter to Pacific:

On June 14, Pacific rejected most of the union's proposal because it did not want to be perceived by the DHS as being noncooperative or disruptive.

In response, the union attempted to convince Pacific that:

Pacific explained its E-Verify procedure and contended that it owed the union no duty to bargain over its decision to participate in E-Verify because:

The union filed an unfair labor practice (ULP) charge with an NLRB regional office, which sought advice from the Division of Advice in the Office of the NLRB's General Counsel about whether it should issue a ULP complaint.

On December 3, 2012, the associate general counsel of the NLRB released an advice memorandum dated February 6, 2012, in which he concluded that:

Accordingly, the associate general counsel directed the Region to issue a complaint, absent settlement, alleging that Pacific's unilateral implementation of the E-Verify program violated Section 8(a)(5) of the NLRA.

The associate general counsel found that participation in E-Verify is a mandatory subject of bargaining because:

The associate general counsel further found that Pacific was not required to enroll in E-Verify by:

For more information on which states mandate E-Verify participation, see Practice Note, State E-Verify Employment Eligibility Verification Laws: Overview.

This advice memorandum was released by the Division of Advice within the General Counsel's Office. It is not binding precedent from the panel (Board) heading the judicial functions of the NLRB, but it shows:

The NLRB's associate general counsel considered E-Verify to be akin to implementing a drug testing policy for current employees, which is a mandatory subject of bargaining (see Johnson-Bateman Co.). Employers should note that Board law distinguishes testing of employees from pre-employment testing, that is testing of applicants or prospective employees to whom job offers have been made contingent on passage of the pre-employment tests. Employers are generally free to implement non-discriminatory pre-employment tests without bargaining with the union that represents its employees because, until the applicants begin working, they do not share the requisite community of interest to be represented in a bargaining unit with current employees (Star Tribune).

E-Verify can be used for persons once they have accepted offers of employment. Employers that have unionized workers and wish to voluntarily enroll in E-Verify without running afoul of bargaining obligations under the NLRA should consider: