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Bloggings on I-9 E-Verify Immigration Compliance

by Bruce E. Buchanan

NLRB Discusses What to do when Labor Law & Immigration Law Intersect

As an immigration attorney, who formerly worked as an attorney for the National Labor Relations Board for 20 years, I will attempt to explain a recently-issued memorandum from the NLRB concerning how to handle compliance cases with issues concerning whether the terminated employee (also referred to as a discriminatee) was authorized to work under the Immigration Reform and Control Act (IRCA).

In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court held the IRCA bars the Board from awarding backpay to any individual who was not legally authorized to work during the backpay period. Furthermore, an undocumented worker cannot be ordered reinstated.

On May 4, 2012, the NLRB’s Associate General Counsel (AGC) issued a memorandum to all Regional Directors of the NLRB providing guidance after the Board’s decision in Flaum Appetizing Corp., 357 NLRB No. 162 (Dec. 30, 2011), a case involving compliance with a prior Board Order. It should be noted the National Labor Relations Act (NLRA) is substantially different than Title VII, the ADEA, and other employment statutes, in that it bifurcates the finding of a violation of the law from the compliance/remedy stage of the case (oftentimes involving reinstatement with backpay but never any damages).

In Flaum Appetizing, Respondent alleged none of the discriminatees (former employees who were unlawfully discharged) were entitled to work in the U.S. under IRCA; thus, none were entitled to backpay under Hoffman Plastics. However, Respondent provided no specificity with regard to any of the discriminatees except to state a number of the alleged discriminatees testified their documentation was false. However, only four of the 17 discriminatees testified at the underlying unfair labor practice (ULP) hearing that their green cards, which were presented to the employer at the time of their hire were, not their own. Seven discriminatees verified their green cards while six discriminatees did not even testify at the ULP hearing.

Concurrent with the compliance hearing, the employer served identical subpoenas duces tecum demanding the employees’ work authorization documents, identity documents under IRCA, as well as such documents as marriage licenses, voter registration cards and educational records. The Board granted Counsel for the General Counsel’s (CGC) pre-trial motion to strike Respondent’s affirmative defenses as to the 11 employees who did not testify against their interests. The Board concluded “permitting such re-verification [of work authorization status] … without sufficient factual basis … would invite a form of abuse expressly prohibited by IRCA, and would contravene ordinary rules of procedure and undermine the policies of the Act.” Slip op. at 7. It also contravenes the policy underlying the NLRA and chills the exercise of statutory rights. Id. at 6-7. However, the Board directed Respondent to provide an amended Bill of Particulars to provide adequate elaboration of its claims as to the other four discriminatees, without which the Administrative Law Judge (ALJ) would strike the defenses upon a motion by the CGC.

Thus, the Flaum decision means the Board will not allow a respondent to use Board processes to launch a “fishing expedition” aimed at Hispanic-sounding names in hopes of discovering unanticipated evidence that might mitigate its backpay liability under Hoffman Plastics. (This is especially true since the NLRA does not allow discovery, only issuance of subpoenas for documents producible at trial.)

In all compliance cases in which respondent fails to state in its Answer sufficient supporting facts for its work-authorization defense to a discriminatee’s backpay eligibility, the AGC advised the Region, through the CGC, should file a pre-trial motion for a Bill of Particulars eliciting respondent’s position and specific evidence in support of its assertion that the employee is ineligible to work. Furthermore, upon review of the Bill of Particulars, if respondent’s pleadings continue to be deficient, the Region should file a motion to strike the affirmative defenses. If subpoenas duces tecum have been served on discriminatees in a pending compliance proceeding in which such an affirmative defense has been pled, the AGC advised Regions should move to revoke the subpoenas conditionally, subject to a ruling on the motion for a Bill of Particulars and a review of the bill produced.

The memorandum also covered several other immigration status issues, which were not discussed in Flaum. They are:

(1) Since an employee’s work authorization status is irrelevant to the underlying question of the employer's liability under the NLRA, (see Tuv Taam Corp., 340 NLRB 756, 760 (2003)), CGC should object to a respondent’s attempt to litigate a discriminatee’s or a witness’s immigration status at the liability phase, and should take a Special Appeal to the Board on any adverse ALJ ruling;

(2) Regions may consider whether a charged party (usually an employer) commits an independent violation of Section 8(a)(1) of the NLRA where, without evidence of an employee’s “disabling status”, it issues subpoenas for the employee's work authorization documents for purposes of harassing the employee; and

(3) A reinstatement offer is not valid if it is conditioned on re-verification of employment status.

This is the second recent occasion where labor law and immigration law have intersected. That’s why it is wise to obtain an attorney(s) well-versed in the areas of immigration and labor law when the two areas intersect.

About The Author

Bruce E. Buchanan is an attorney at the at Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on immigration compliance for employers, and employment/labor law. Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982 and a B.S. degree from Florida State University, where he graduated magna cum laude. Mr. Buchanan has been in private practice since 2003. Beforehand, he served as Senior Trial Specialist for the National Labor Relations Board for 20 years. He also served from 1991 to 2003 as Adjunct Professor at William H. Bowen UALR School of Law, where he taught courses in Labor Law and Employment Law. Mr. Buchanan was chair of the Tennessee Bar Association's Immigration Law Section from 2011 to 2012 and has been the editor of the TBA's Immigration Law Section Newsletter and the TBA's Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan is a frequent writer and speaker on immigration compliance as well as labor law, wage & hour law and proposed federal legislation. He is a member of American Immigration Lawyers Association (AILA) and serves as the Advocacy Liaison of the Mid-South Chapter of AILA. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors. Mr. Buchanan is admitted to practice in Tennessee, Florida, and Arkansas, before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuits and the U.S. District Courts for the Middle District of Tennessee and the Eastern and Western Districts of Arkansas.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.