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NLRB Settlement Sets Precedent for E-Verify Compliance Among Unionized Workforces

A recent settlement between the National Labor Relations Board (NLRB) and the Pacific Steel Casting Company (PSC), based in Berkeley, California, set a new standard for E-Verify compliance in the unionized labor arena.

The steps for the precedent-making settlement were set in motion when ICE conducted a Form I-9 audit for approximately 550 PSC employees in February 2011. At this time, PSC voluntarily enrolled in E-Verify without notifying its unionized employees or their union chapter, Local 164B. When Local 164B subsequently learned of the enrollment, the company contended that it was required to participate in E-Verify because of its role as a federal contractor. When this claim was found to be incorrect, the union filed a complaint with the NLRB alleging that PSC’s lack of bargaining over its E-Verify enrollment changed the terms and conditions of employment and amounted to a unilateral repudiation and/or modification of its contracts with unionized workers.

Under the terms of the settlement, PSC agreed to withdraw from E-Verify and to reinstate and award back pay and lost benefits to all employees who were erroneously terminated while contesting Tentative Non-Confirmations (TNCs), as well as workers who were denied the opportunity to contest TNCs at all. Under the rules governing E-Verify, an employee who wishes to contest a TNC must be afforded an opportunity to do so within ten federal government workdays and may not be terminated unless and until he/she receives a Final Non-Confirmation (FNC) or a “SSA/DHS No Show.”

The settlement breaks new ground for alerting employers with unionized employees to their bargaining and other union contract obligations when considering voluntary enrollment in E-Verify. Before making the decision to enroll, companies should carefully review their collective bargaining agreements, notify union and affected employees as required, and properly train human resources personnel on E-Verify rules to prevent unlawful terminations.

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About this Author

Nataliya Binshteyn Dominguez, Greenberg Traurig Law Firm, Northern Virginia, Immigration Law Attorney

Nataliya Binshteyn Dominguez focuses her practice on global business immigration matters. She advises corporate and individual clients in a variety of employment-based immigrant and non-immigrant cases. She advises corporations on Form I-9 and E-Verify employment verification matters, including compliance audits, due diligence for corporate restructuring, and immigration-related defense in connection with worksite enforcement investigations. Nataliya also conducts Form I-9 and E-Verify trainings and frequently authors articles regarding immigration compliance issues. She...