Best Practices in HR

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Jennifer Daimon
  May 6, 2019

Verify Before You E-Verify: Remember to Obtain Union Approval

The National Labor Relations Board (NLRB) recently determined that an employer violated the National Labor Relations Act (NLRA) by enrolling in E-Verify without first seeking approval from the union that represents its employees (Ruprecht Co., 366 NLRB No. 179 (2018)). The Ruprecht Company, a meat processing company located in Illinois, employs production line workers who are represented by a union, Local 1.

Ruprecht enrolled in E-Verify after being audited by a government agency for employing workers who may not have been authorized to work in the United States. E-Verify is an internet-based program that allows employers to verify employment eligibility using the information provided by the employee on his or her Form I-9. Ruprecht decided to use E-Verify going forward to verify employment eligibility for its new employees. While the company’s decision did not involve verification of current employees’ eligibility, it could and did affect new employees who also belonged to Local 1.

Local 1 brought the issue to the attention of the NLRB, arguing that Ruprecht violated the NLRA by enrolling in E-Verify without first bargaining with and obtaining the union’s approval. In general, an employer of a unionized workforce must bargain with the union prior to taking any action that can affect terms and conditions of employment. Ruprecht disregarded this process by unilaterally enrolling in E-Verify without obtaining consent from Local 1. The NLRB found that Ruprecht violated the NLRA with its enrollment. Furthermore, Ruprecht’s decision to enroll was completely voluntary because the company was not required to enroll by either the federal government or by statute (e.g., Illinois state law). The NLRB ordered Ruprecht to withdraw from E-Verify if the union asked it do so.

Based on this NLRB decision, companies who employ a workforce where at least some of its employees are union members must follow any bargaining and approval requirements prior to enrolling in E-Verify. However, since this decision was based on Ruprecht’s voluntary enrollment, the NLRB could find differently where an employer is mandated to perform E-Verify by either the federal government or by statute. It is recommended for employers to review their specific situation with company or outside counsel prior to enrolling in programs that may affect the rights of unionized employees.

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