Labor Considerations In Implementing A New Immigration Compliance Or No

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Advice to employers and immigration practitioners re union considerations in implementation SSA No-Match Safe Harbor Rule

Advice to employers and immigration practitioners re union considerations in implementation SSA No-Match Safe Harbor Rule

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  • 1. LABOR CONSIDERATIONS IN REPRESENTING EMPLOYERS REGARDING IMMIGRATION, IMPLEMENTATION OF A NO-MATCH POLICY, INVESTIGATING NO-MATCH LETTERS, AND TERMINATING EMPLOYEES by Mary E. Pivec When evaluating the implementation and application of a new immigration compliance or SSA no-match policy, you need to consider the limits of your expertise as an immigration specialist. A key consideration is whether the affected employees are covered by a collective bargaining agreement. Even if they are not, they are protected under Section 7 of the National Labor Relations Act. A. If there is a collective bargaining agreement in place -- 1. Consult the language of the following clauses and related precedent grievance settlements and arbitration decisions to determine the degree to which the Employer is precluded from implementing a new policy or practice during the term of the contract: a. Management Rights b. Immigration c. Discipline and Discharge If you are not sure, STOP. Consult Labor Counsel before taking further action. If you recommend that the Employer take action and are you are wrong, you could be sued for malpractice and the Employer could be subject to back pay liability and reinstatement of any employees terminated in violation of the contract. There is a public policy exception to judicial enforcement of a grievance arbitration decision, but the public policy must be clearly defined, and the Employer must follow it precisely. In the absence of a legally implemented final No-Match Safe Harbor Rule, it is safer to seek a negotiated solution with the Union. See the Aramark case. 2. If the Employer is not precluded from proposing a change in policy by (1) or (2) during the term of the collective bargaining agreement, any new policy (or a material change in enforcement of an existing policy) which impacts the continuation of employment is a mandatory subject of bargaining. Prior to implementation, the Employer is obligated to give the Union notice of the proposed change and an opportunity to bargain. If the Union waives the opportunity to bargain by failing to respond within a reasonable period, the Employer may implement the policy unilaterally. If the Union insists upon bargaining, the Employer must bargain to impasse prior to implementing the policy. The Union also is obligated to bargain in good faith. If it adheres to a rid position: “No” – an impasse is likely, however. © Keller and Heckman LLP, 2008 1
  • 2. If you are not sure whether the Employer has satisfied its bargaining obligation to the Union, STOP. Consult Labor Counsel before taking further action. If you are wrong, you could be sued for malpractice, and the Employer could be charged with unfair labor practices under the NLRA with attendant costs and attorneys’ fees, as well as potential back pay liability and reinstatement obligations. 4. If there is a collective bargaining relationship, the Union must be given notice of investigations which may result in disciplinary action. Investigation of the discrepancies noted in a No-Match Letter which impact bargaining unit members triggers the obligation to give notice to the Union. Affected employees have a right to request that a Union representative be present in any interview with Management related to the investigation, including any meeting called to notify the employee of disciplinary action or termination (known as Weingarten Rights). The Union representative does not have the right to obstruct the investigation or direct the employee not to answer questions reasonably related to the investigation. If you are not sure whether the Employer has satisfied its Weingarten obligations, STOP. Consult Labor Counsel before taking further action. If you are wrong, you could be sued for malpractice, and the Employer could be charged with unfair labor practices under the NLRA with attendant costs and attorneys’ fees, as well as potential back pay liability and reinstatement obligations. B. If there is no Union representative and/or collective bargaining agreement – 1. Generally speaking, the Employer may implement or change any policy or practice not inconsistent with a binding express or implied agreement between the Employer and its employees. Do request copies of all current immigration, conduct, progressive discipline, and discharge policies to ensure that the proposed change is allowable and consistent. If you are not sure whether the Employer can implement the change, STOP. Consult Labor Counsel before taking further action. If you are wrong, you could be sued for breach of an express or implied contract under governing state law, and could incur liability for back pay and reinstatement of employees whose contract rights have been violated. 2. Under current law, non-Union represented employees have no Weingarten Rights – meaning they have no right to request that a © Keller and Heckman LLP, 2008 2
  • 3. representative be present during an investigatory or disciplinary interview. 3. Nevertheless, even unrepresented employees are protected under Section 7 of the NLRA, which entitles them to engage in concerted protected activity for their mutual aid and protection, and prohibits Employers from interfering in the exercise of such rights. Prohibiting employees from discussing their employee inclusion in a No-Match Letter with co-workers or community organizations has been held to violate Section 7 (Ashley Furniture and Voces de la Frontera). Caveat: A community organization is not a labor organization under the NLRA and has no right to represent or engage in collective bargaining on behalf of employees. They can, however, stir up a lot of trouble for the employer (boycotts, pickets, etc. – presumably protected First Amendment activity). If you are not sure whether the Employer may be violating the employees Section 7 rights, STOP. Consult Labor Counsel before taking further action. If you are wrong, you could be sued for malpractice, and the Employer could be charged with unfair labor practices under the NLRA with attendant costs and attorneys’ fees, as well as potential back pay liability and reinstatement obligations – EVEN THOUGH THE EMPLOYER DOES NOT HAVE A COLLECTIVE BARGAINING AGREEMENT WITH ANY UNION. Unions frequently are behind unfair labor practice changes based on the Section 7 rights of unrepresented employees – they use the proceedings as an organizing tool to demonstrate the benefits of Union representation. © Keller and Heckman LLP, 2008 3