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NLRB General Counsel’s office issues case handling memo instructing regional offices on how to handle immigration issues in compliance hearings

On Friday, May 4, NLRB Associate General Counsel Anne Purcell issued a case handling memo instructing regional offices on how to handle immigration issues in unfair labor practice compliance proceedings. The memo stems from the Board’s 2011 decision in Flaum Appetizing Corp, in which the Board struck an employer’s affirmative defenses to a back pay specification in an unfair labor practice case and rejected the employer’s bid to subpoena extensive documentation from its unlawfully discharged employees about their immigration status in an effort to prove they were not entitled to back pay.

The memo notes that, in general, an employee’s work authorization status is irrelevant to the merits of an ULP complaint and only becomes a triable issue at the compliance stage. The memo instructs the regions to demand that employers provide a full accounting of evidence that they plan to rely upon in order to assert that employees are ineligible for back pay during that compliance phase, When an employer fails to state in its answer sufficient supporting facts, the regions are instructed to file a pre-trial motion for a bill of particulars to obtain the employer’s position and specific evidence that the employee is ineligible to work in this country. If the bill fails to show sufficient evidence of work ineligibility, the regions are instructed to file a motion to strike the affirmative defenses. Should the employer fail to state in its answer other issues affecting its decision not to remit back pay, the regions are instructed to move for summary judgment.

The memo further instructs that in accordance with Flaum, employers are not allowed to condition reinstatement offers on work re-verification. Before that decision, employers were allowed to require discriminatees to complete the appropriate portion of the I-9 form and to submit appropriate documentation. The Case Handling Manual will be modified to reflect the change in policy.

The memo also states that the General Counsel’s office will object to attempts to litigate the immigration status of discriminatees at the ULP hearing. Counsel for GC’s office are instructed to take a Special Appeal to the Board on any adverse ALJ ruling.

Of crucial importance to employers is the memo’s instruction that regions may consider whether an employer’s issuance of a subpoena for the employee’s work authorization documents, absent evidence of an employee’s immigration status, may constitute a ULP. The memo suggests that if the subpoena is issued for purposes of harassing the discriminatee, the issuance for the subpoena may be a ULP. The memo cites a case litigated by Region 3 in which an ALJ granted a motion to strike and its petition to revoke a subpoena because the claimed material was irrelevant and presented a threat of intimidation. Prior to making such a determination, members of the GC’s office are instructed to first contact the office for guidance.

Source: CCH Editorial Staff