The General Counsel of the National Labor Relations Board has instructed agency regional directors and other officials charged with investigating unfair labor practice charges to consider whether the immigration status of affected employees may affect the Board’s ability to proceed in litigation and fashion effective remedies.

On February 27, 2015, General Counsel Robert F. Griffin, Jr., issued a Memorandum (GC-15-03) providing updated procedures to be applied when immigration status issues may affect NLRB investigations and proceedings. The new procedures require Regions to contact the NLRB’s Division of Operations-Management at any point in the proceedings if they believe that someone’s immigration status may impair the Region’s ability to litigate or remedy a potential unfair labor practice. Operations-Management will assist Regions with possible interagency collaboration, consult on possible remedies, and provide NLRB-wide coordination.

Undocumented workers are “employees” within the meaning of the National Labor Relations Act, and their immigration status is not relevant to an unfair labor practice investigation. Consequently, Regions will not investigate nor determine a worker’s immigration status during such an investigation. However, action taken by an employer to comply with immigration laws may be a defense to an alleged violation of the NLRA and a Region may investigate appropriate facts bearing on the employer’s motivation.

The Memorandum counsels that interagency coordination may be appropriate if immigration status could impact a charge’s investigation or remedy. The potential discriminatee or witness may be eligible for a U or T visa, or deferred action from or assistance by the Departments of Justice or Homeland Security to permit an investigation to continue or for an appropriate remedy to be determined and enforced.

While undocumented workers are not eligible for back pay and reinstatement under the NLRA, the General Counsel urged the Regions to consider alternative remedies such as enhanced notice requirements, training of employees and supervisors regarding employee rights and employer responsibilities under the law, a bargaining order, union access to employee contact information, reimbursement of organizing or bargaining expenses, and other appropriate remedies. Further, Regions are encouraged to seek a Formal Board Settlement, which is a Board Order (and is often accompanied by a federal court judgment) in connection with which the General Counsel can seek judicial relief in the event of non-compliance with the settlement by the employer.

Enhanced remedies in the event of a violation of the NLRA are only one of the negative implications of an inaccurate initial determination. Please consult experienced counsel if you have any questions.

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Photo of Patrick L. Egan Patrick L. Egan

Patrick L. Egan is a principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Patrick works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Patrick has represented employers in card-signing efforts and…

Patrick L. Egan is a principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Patrick works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Patrick has represented employers in card-signing efforts and representation and decertification campaigns. He has conducted union awareness and positive employee relations training for hundreds of companies and employer groups. He has also assisted dozens of employers to preempt, prepare for and defend against union corporate campaigning.

Patrick has appeared for employers in representation, objections and challenged ballot hearings at the National Labor Relations Board. He has also represented employers in unfair labor practice charge investigations and trials. Patrick has also represented employers before the Massachusetts Commission Against Discrimination, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration and other state and federal agencies. Patrick has served as chief spokesman at hundreds of collective bargaining negotiations, including negotiations seeking a first contract and those aimed at reaching a successor contract. He speaks frequently before various employer and human resources groups on a variety of labor relations topics.

Patrick was a four-year starter and a senior captain of the varsity soccer team at Holy Cross.

After practicing management-side labor law at smaller firms in Springfield and Boston, Massachusetts, Patrick joined Jackson Lewis in 1990. He was elected a partner effective January 1, 1995.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.