When it comes to E-Verify, unionized employers have to be aware of how much power their unions have over how the company uses the background verification system.
The Ruprecht Co., a meat processor, was ordered by a National Labor Relations Board judge to furnish its union with private immigration documents and cease E-Verify participation upon the union's request, according to Law360. Administrative Law Judge Joel Biblowitz ruled the Illinois-based company should negotiate with the union over its use of E-Verify. Unionized employers who are considering enrolling in E-Verify should always first take steps to discuss such a move with employees.
The NLRB's decision all started with a Form I-9 audit conducted by Immigration and Customs Enforcement. In January 2015 the agency began an audit of 262 of the company's Form I-9s. As the process was ongoing, Ruprecht enrolled in E-Verify to avoid a substantial loss of employees due to Form I-9 reviews in the future. The meat processor did this without first consulting union members, though. It is unionized employers' responsibility to discuss enrollment with unions before integrating E-Verify into the hiring process.
Unions' rights in terms of hiring
Federal regulations give unions the right to an opportunity to bargain when terms and conditions of employment are set to be changed. This includes enrollment in E-Verify, which can fundamentally change the hiring process. There are a number of reasons for this. For example, enrollment in E-Verify sets a term for new hires to provide authentic work documents, JD Supra explained. In addition, it gives employers more reasons to terminate employees if they fail to contest Tentative Nonconfirmations and for other reasons related to the background check program.
E-Verify wasn't the only issue that came up during the audit, though. The union requested correspondence documents sent from ICE identifying employees subject to the Form I-9 audit. Unionized employers are required by law to provide materials requested by union members under most circumstances. Ruprecht complied and provided the letters with the employees' names redacted. The union again requested the documents, unaltered. This time the meat processor asked that they first enter a confidentiality agreement. The NLRB judge eventually ruled that the letters were relevant to the union's role as a protector and representative of affected employees.
"E-Verify serves as a powerful supplement to the Form I-9."
Ultimately, the judge ruled that Ruprecht should provide the union with letters from ICE and rescind its participation in E-Verify, which puts the company in a tough spot. Employers are required to provide 30 days notification before terminating enrollment in the background verification program. This means that for 30 days Ruprecht is still required to use E-Verify for new hires, in violation of the union's request that it stop and, as a result, the NLRB's order.
Take care when enrolling in E-Verify
Unionized employers should be extremely careful about moves they make regarding hiring. Any decision that could change the terms of employment should be negotiated with the union first. And if the group seeks documents relating to a Form I-9 audit, those should also be provided.
Despite the union's concerns with E-Verify, though, it often can help employers ensure they are making the right - and compliant - hires. The program serves as a powerful supplement to the Form I-9. It ensures that the hiring documents are, in fact, genuine, and the new employee is who he or she says. However, the change is also significant and should be made with the approval of the union. Otherwise, there is certainly recourse for employee representation, as evidenced by the case against Ruprecht.