Friday, October 26, 2012

Tread carefully when using E-Verify in union workplaces

When using E-Verify in union workplaces, one should be careful to ensure union involvement in making the decision and implementing the use of this screening system for employees. A recent settlement between the NLRB and Pacific Steel Casting Company followed a decision by the company to unilaterally implement E-Verify screening for its new hires without seeking the involvement of the labor union which was in the plant.

Pacific Steel made three mistakes, which opened them up to the NLRB action: unilateral implementation of E-Verify, misunderstanding the E-Verify Federal Contractor rule, and misunderstanding when employees can be terminated for E-Verify notices.

MISTAKE 1: The company implemented E-Verify usage around the time of an I-9 immigration compliance which resulted in the firing of 200 workers found to be undocumented. Three months later, when a labor union representing employees in the plant inquired about the E-Verify implementation.

MISTAKE 2: The company attempted to defend the move by falsely claiming they were a federal contractor and therefore required to use E-Verify (for more on the federal contractor rule, click here), which was used as a justification for unilaterally modifying the terms of its labor agreements.

MISTAKE 3: The company dismissed workers who were flagged with Tentative Non-Confirmation notices, instead of waiting for them to either resolve their statuses or Final Non-Confirmation notices to be posted in E-Verify, which is required per E-Verify rules, which directs employers that the initial Tentative Non-Confirmation notice "does not mean that the employee is not authorized to work in the United States."

Pacific Steel's agreement called for them to end their E-Verify agreement and reinstate those workers who were dismissed wrongfully with back pay and benefits. This agreement only covered those workers who were found to be eligible to work in the United States.

Many of the root causes lay in the failure of the company to fully understand the rules for using E-Verify. On top of that, wrongful dismissal and labor union issues compounded the matter and served as the trigger for intervention. Thus it's crucial to be sure your HR staff knows the rules for E-Verify and follow them as they apply to your workplace.


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