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NLRB Orders Employer to Rescind Enrollment in E-Verify

September 20, 2018 by

Employers are permitted, but not obligated, to enroll in the federal government’s E-Verify program to confirm that employees are authorized to work in the U.S. Because enrollment in the E-Verify program is discretionary, not mandatory, employers are obligated to bargain over the decision to enroll in the program and the effects of enrollment. The NLRB confirmed this basic concept in a decision issued late last month. (Ruprecht Co., 366 NLRB No. 179.)

Of even more interest in this case is the Board’s remedy for the unilateral implementation of the E-Verify program. The Board ordered the employer here to rescind its enrollment in the program, even though the union subsequently ratified a collective bargaining agreement that authorized the employer to use E-Verify.

One might think this new collective bargaining agreement would constitute a waiver of the union’s right to object to the unilateral implementation of the E-Verify program. But the Board ruled otherwise, concluding that the employer’s unilateral action, with no prior notice to the union, coupled with other unilateral actions on the eve of contract negotiations, unlawfully tipped the starting point for negotiations in favor of the employer. The union’s consent to the new contract that authorized E-Verify, the Board explained, was a product of the unfair advantage the employer gained from it unlawful actions, and thus only an order directing the employer to withdraw from E-Verify could effectively remedy the violation.

Notwithstanding this decision, unions are cautioned to be careful in concluding contract negotiations in the face of unremedied unilateral changes. The Board distinguished the case here from another where the Board concluded that a union that entered into a collective bargaining agreement authorizing the employer to transfer employees, action the employer had previously taken unilaterally, had waived its right to demand rescission of the unilateral transfers. In that case, unlike the present one, the Board noted, the employer had given the union advance notice of its intent to make the transfers and had committed just this one unilateral change.


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