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Employer Cannot Join E-Verify Without Bargaining With Union

    Client Alerts
  • September 19, 2018

Under the National Labor Relations Act, unionized employers cannot make material changes to terms and conditions of employment without entering into bargaining with the union. Last month, the National Labor Relations Board concluded that this bargaining obligation applied to an employer’s unilateral decision to enroll in the Department of Homeland Security’s E-Verify system.

In The Ruprecht Co., the employer received a subpoena from Homeland Security seeking information about the work eligibility of its employees. Without notifying the union, the company responded to this subpoena with a number of remedial measures, including enrolling in E-Verify, a voluntary government program that provides verification of an employee’s or applicant’s eligibility status. When the union learned of this change, it filed an unfair labor practice charge, demanding that the company rescind its participation in the E-Verify program.

In a 2-1 decision, the NLRB panel agreed, concluding that the employer had an obligation under the NLRA to notify and bargain with the union before joining E-Verify. Using this program to identify possibly unauthorized union members constituted a material change in the terms and conditions of employment. By ordering the company to withdraw from the program, the NLRB stated that it was restoring the status quo to allow for renewed bargaining on the issue. The fact that E-Verify is a government program available to all employers did not dissuade the board majority from concluding that such participation still requires mandatory bargaining with the union.