September 20, 2021

Volume XI, Number 263

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September 20, 2021

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NLRB Finds I-9 Compliance Can Be Subject to Mandatory Bargaining

Complying with statutory workplace requirements does not necessarily excuse an employer from its bargaining obligations. A panel of the National Labor Relations Board (NLRB) upheld an Administrative Law Judge’s (ALJ) finding that an employer violated the National Labor Relations Act (NLRA) when it refused to bargain over the effects of requiring employees to submit new I-9 forms. Frontier Communications Corp., 370 NLRB No. 131 (May 26, 2021).

The Board’s affirmation highlights the sensitive interaction between mandatory compliance with federal statutes and an employer’s obligations under the NLRA.

In late-2018 or early-2019, the employer conducted an I-9 audit and uncovered extensive noncompliance with the I-9 forms it had on file. To resolve the issues, the employer determined that it would need to obtain new I-9 forms from approximately 95% of its workforce hired after November 6, 1986, and before March 31, 2018. On July 19, 2019, the employer notified its employees by email that they would need to submit new I-9 forms. Soon thereafter, the union complained that it did not receive prior notice of the communication or of the announced I-9 requirement and demanded bargaining on the issue. Ultimately, the employer refused to bargain on the issue, arguing it was not obligated or permitted to bargain over its efforts to comply with federal immigration laws. In response, the union filed an unfair labor practice charge.

The ALJ held, and the NLRB affirmed, that the employer’s directive that employees submit new I-9 forms was a mandatory subject of bargaining because the requirement affects terms and conditions of employment. The ALJ explained that the I-9 forms “clearly affects the terms and conditions of employment, as employees who (for whatever reason) have difficulty completing the I-9 forms risk losing their jobs, among other potential consequences.” The ALJ flatly rejected the employer’s argument that I-9 compliance was not subject to mandatory bargaining because the employer is required to comply with the Immigration Reform and Control Act of 1986 (IRCA). The ALJ explained that IRCA compliance was subject to mandatory bargaining because the employer had discretion over how to comply with IRCA. For example, the ALJ asserts that the employer had discretion on “the amount of time [employer] would give an employee to obtain and present documents that establish the employee’s identity.” Accordingly, the ALJ found the employer violated the NLRA when it refused to bargain with the union concerning how to complete the I-9 forms.

The ruling, in this case, is not that an employer must bargain over whether to comply with the law, but it must bargain over the impact compliance with the law could have on employees’ terms and conditions of employment.

The NLRB’s affirmation of the ALJ’s findings illustrates the fine line between federal compliance and NLRA obligations. Employers must be cautious of how federal or state compliance affects the NLRA obligation to bargain. When an employer is considering updating its personnel files or changing its onboarding process, it should consider whether it implicates any NLRA obligations.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 162
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About this Author

Blaine A. Veldhuis Associate Detroit Employee Benefits General Employment Litigation
Associate

Blaine A. Veldhuis is an Associate in the Detroit, Michigan, office of Jackson Lewis P.C. His practice focuses on representing employers in a wide range of employment and labor matters, including matters involving ERISA. 

Mr. Veldhuis assists and counsels employers on items related to union activity, such as Unfair Labor Practice charges and collective bargaining.

While attending law school, Mr. Veldhuis was a Title Editor for the University of Detroit Mercy Law Review and participated in the University of Detroit Mercy Veterans Law...

248-936-1924
Thomas V. Walsh, Jackson Lewis, employment arbitration Lawyer, White plains, Union Organizing Attorney
Shareholder

Thomas V. Walsh is a Shareholder in the White Plains, New York, office of Jackson Lewis P.C. Since joining the firm in 1986, Mr. Walsh has represented employers in all aspects of labor and employment law and litigation.

Mr. Walsh has represented employers before numerous state and federal courts, regulatory agencies, as well as in numerous arbitrations. Mr. Walsh has extensive experience in representing employers faced with union organizing drives and in proceedings before the National Labor Relations Board. He has an...

914-872-6912
Richard F. Vitarelli Harford  Connecticut Labor Relations Lawyer at Jackson Lewis Law Firm
Principal

Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living,...

860-522-0404
Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta
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Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...

404-586-1835
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