NLRB Updates Immigration Status Procedures During NLRB Proceedings

A new memorandum (PDF) from the National Labor Relations Board (NLRB) provides a brief introduction to immigration status issues and an update on how such issues should be addressed during NLRB investigations and proceedings. The memo notes that the National Labor Relations Act (NLRA) protects all employees covered by the NLRA regardless of immigration status, but that immigration status issues may affect remedies and occasionally present other practical difficulties with respect to enforcement of the NLRA.

Supplementing earlier guidance (GC 02-06), this memo provides further guidance for proceeding when immigration status issues arise during NLRB case handling. It also identifies immigration agencies that have discretion to provide immigration remedies and other assistance to discrimination victims or witnesses in NLRB proceedings. Among other things, the memo notes:

• Regions generally should presume that employees are lawfully authorized to work. They should refrain from conducting a sua sponte immigration investigation and should object to questions concerning the discriminatee’s immigration status at the merits stage.
• Regions should investigate the discriminatee’s immigration status only after a respondent establishes the existence of a genuine issue (during the remedial stage).
• Regions should conduct an investigation by asking the union, the charging party, and/or the discriminatee to respond to the employer’s evidence.
• Regions should consult GC 02-06 for additional direction.

The memo notes that NLRB discriminatees, witnesses, or voting-eligible employees may be taken into custody by ICE or CBP. In addition, immigration status may be inextricably intertwined with an unfair labor practice, such as where immigration threats or related conduct are the basis of the unfair labor practice allegation. Or the issue may be as simple as an employee volunteering information about immigration status or asking the Region for immigration advice or assistance.

“Regions should not provide immigration advice,” the memo notes. “Resolution of these issues is best addressed when employees can obtain immigration advice through their union or from an independent immigration attorney.” Regions may refer interested persons to the list of accredited immigration services providers maintained by the Department of Justice. The memo notes that individuals sometimes are mistaken about their immigration status and Regions should not assume that immigration status information volunteered by an unrepresented person is correct.

The memo also notes that in certain cases where immigration status is of particular significance, the agency may decide to seek the assistance of one of the three immigration agencies (U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Patrol) to advance the effective enforcement of the NLRA. Such agencies may assist in providing visa remedies, deferring immigration actions during the pendency of the NLRB proceeding, and/or releasing individuals from custody or providing access to witnesses in custody.