Could Your Illegal Employees Become Your New Bargaining Partner?

David Keene, II
March 17, 2008 — 1,672 views  
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Most employers know that the National Labor Relations Board (NLRB) broadly defines the term “employee”. What employers may not know is that definition has been expanded so broadly that it now includes persons who are not even properly documented to work in the United States. The United States Circuit Court of Appeals for the District of Columbia recently held that undocumented aliens are entitled to all protections accorded to all "employees" under the National Labor Relations Act (NLRA). In Agri-Processor Co., Inc. v. NLRB, the Court confirmed those rights even though undocumented aliens may not lawfully work in U.S. workplaces under the Immigration Reform & Control Act of 1986 (IRCA). Incredibly, the court created the dichotomy that it is illegal for employers to hire undocumented workers or for such undocumented workers to seek employment in the United States, but that once they become workers they have all the rights of lawful workers to unionize - with the blessing of the NLRB and a highly-influential court of appeals. The Facts Agri-Processor Co. (Agri) is a wholesaler of kosher meats in Brooklyn, New York. In September 2005, the company's employees voted to join United Food & Commercial Workers. Following the election, the employer searched the Social Security Administration’s website to ensure that its employees had provided legitimate Social Security numbers. The search revealed that most of the employees’ numbers were either fraudulent or were stolen from other people. Agri refused to bargain with the union, asserting that as most of the bargaining unit members were working illegally, it had no duty to bargain. The union filed an unfair labor practice charge, alleging that its members’ immigration status was irrelevant and that Agri violated the NLRA by its refusal to bargain. Eventually the NLRB issued a Decision and Order finding that the members’ immigration status was irrelevant as to Agri’s duty to bargain, and ordered Agri to bargain. Agri continued its refusal to bargain and appealed court of appeals to vacate the NLRB's order. The root of the company's argument was that its responsibility to comply with IRCA trumped its duty to bargain under the NLRA. The Holding A divided three-judge panel agreed with the NLRB's conclusion that an undocumented worker falls within the NLRA's broad definition of "employee," citing several earlier Supreme Court’s decisions, including those defining union salts and illegal immigrants as employees. The court further noted that the enactment of IRCA years after the Supreme Court's decisions neither amended the NLRA, nor did it affect the Supreme Court's rulings. The D.C. Circuit Court noted that the Circuit Courts of Appeal for the Seventh, Ninth, and Eleventh Circuits had likewise held that the NLRA continues to control this issue despite the later enactment of IRCA. In addition, the D.C. Circuit agreed with the NLRB that the undocumented workers shared a "community of interest" with lawful workers with respect to wages, hours and other terms and conditions of employment, regardless of their immigration status. The Application of Agri to Your Business The implications of Agri for private sector employers are significant and ominous. It makes no sense that an employer has a duty to bargain terms and conditions of employment with employees it is required to discharge. Quite clearly, this decision places employers in a very awkward position. How can you withstand this ruling? You can start by guaranteeing that your immigration status compliance check is watertight and that you’re not hiring illegal aliens in the first place. Next, you need to maintain a union-free environment. If those two needs are not met, your company could be faced with bargaining with employees it never should have hired in the first place. Another important point to recall is the number of states enacting legislation that penalizes employers for hiring illegal immigrants, regardless of their compliance with federal immigration law. Florida and Arizona have enacted legislation that penalizes employers for hiring illegal immigrants, and are considering additional ways to punish employers for such acts. How the conflict between state and federal law, never mind between conflicting federal law (NLRA and IRCA), will conclude is anyone’s guess. Just make sure it isn’t your company that’s one of the players in that no-win game.

David Keene, II

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David Keene, an associate in Baker Donelson's Tri-Cities office, concentrates his practice in the area of labor and employment law. Mr. Keene has experience in a multitude of labor and employment areas including negotiating collective bargaining agreements for both private and public sector employers; representing employers in grievance and issue arbitrations; representing employers in all matters, including elections and unfair labor practices, before the National Labor Relations Board and state labor boards; helping clients maintain union-free workforces; handling unemployment claims from initial applications for benefits through court appeals; counseling clients on a multitude of federal employment laws, including the ADA, FMLA, ADEA, and FLSA; litigating employment discrimination claims; and representing individuals against unions. Mr. Keene has been published in The Labor Lawyer, Labor Law Journal, and numerous other publications, and has taught seminars on a wide variety of labor and employment topics.