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Union Employers Beware, E-Verify Enrollment a Mandatory Subject of Bargaining

Posted Tuesday, September 11, 2018 6:25 am

In an August 27 decision, the National Labor Relations Board decided that The Ruprecht Company violated the National Labor Relations Act by failing to bargain with the union representing many of its employees before enrolling in the federal government’s E-Verify program.  Ruprecht Co., 366 N.L.R.B. No. 179, 8/27/18.  This decision marked the first time a validly constituted Board found enrollment in E-Verify to be a mandatory subject of bargaining.

In January 2015, Immigration and Customs Enforcement (ICE) under the Department of Homeland Security (DHS) began an audit of Ruprecht’s I-9 forms.  During the audit, Ruprecht enrolled in E-Verify, a web-based system run by DHS that allows enrolled employers to confirm the eligibility of their employees to work in the United States.  Prior to enrollment, however, Ruprecht did not notify the union, and it did not bargain with the union about the enrollment.  Nevertheless, the parties later negotiated a CBA permitting Ruprecht to use E-Verify.

The three-member panel agreed that Ruprecht should have bargained with the union prior to enrolling in E-Verify because it affects the terms and conditions of employment.  The panel, however, split on the appropriate remedy.  The majority ordered the company, at the union’s request, to rescind its participation in E-Verify and bargain with the union about its prospective participation in it.  The dissenting member argued that the employer should not be required to rescind its participation in E-Verify because the union subsequently agreed to a CBA that included enrollment.  The majority, however, found that the company’s unilateral action seriously undermined the union’s position, giving the union far less bargaining leverage than it would have enjoyed had the company appropriately sought the union’s agreement prior to enrollment.

While some states mandate enrollment in E-Verify, enrollment is voluntary in Hawaii.

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