The NLRB's Revised Procedures for Addressing Immigration Status Issues Arising During Unfair Labor Practice Proceedings: An Explainer

Late last month, the General Counsel of the National Labor Relations Board promulgated Memorandum GC 15-03, which made important changes to the Board’s procedures for addressing immigration status issues arising during unfair labor practice proceedings.  This post explains the background of the Memorandum and outlines the changes it makes.


In 2002, the Supreme Court decided Hoffman Plastic Compounds, Inc. v. NLRB.  There, the Court held that the Board could not award backpay or order reinstatement for undocumented workers discharged in violation of the National Labor Relations Act (NLRA).  However, the Court also left undisturbed an earlier holding that undocumented workers are “employees” for the purposes of the NLRA, and it emphasized that the Board was free to impose “other significant sanctions” on employers who violate the Act in their treatment of such workers.

In the wake of Hoffman Plastic, the NLRB General Counsel released Memorandum GC 02-06 to provide “guidance as to procedures and remedies concerning employees who may be undocumented aliens.”  GC 02-06 made clear that in light of Hoffman Plastic, NLRB regions should not pursue backpay to remedy the discriminatory discharge of undocumented workers (although it concluded that backpay was still available in non-discharge situations, such as where an employer has made a unilateral change in working conditions).  However, it also stressed that undocumented workers remain employees under the Act and reiterated the fact that the Court’s holding had “no effect on ‘other significant sanctions’” available to the Board to enforce the Act.  It also instructed that “Regions generally should presume that employees are lawfully authorized to work” and that “they should refrain from conducting a sua sponte immigration investigation.”

In 2011, the Board supplemented GC 02-06 with Memorandum OM 11-62.  This Memorandum reaffirmed the central premises of GC 02-06, but explained that “in certain cases where immigration status is of particular significance, the Agency may decide to seek the assistance of one of the three immigration agencies to advance the effective enforcement of the NLRA.”  Thus, if immigration status issues could “interfere with enforcement and effectuation of the NLRA by, for example, impacting the availabilities of discriminatees and important witnesses,” seeking such assistance might be appropriate.  The Memorandum instructed Regions to pay particular attention to situations where alleged unfair labor practices involve particularly egregious conduct, “such as physical coercion, involuntary servitude, blackmail, or violations of other laws.”  In such cases, the employers’ conduct could make the discriminatees eligible for immigration remedies such as T Visas or U Visas, which are available to victims of trafficking and other qualifying crimes.  (For prior coverage of U-Visas in the context of labor disputes see this post).

GC 15-03

The Board’s most recent memorandum significantly expands the procedures employed to ensure that the Act is adequately enforced and that the workplace rights of undocumented workers are protected.  It begins by reiterating what has been a consistent premise, that the “NLRA protects all employees covered by the Act regardless of immigration status.”  As a result, in an unfair labor practice case, the merit determination should be made “without considering employees’ immigration status.”  Regional offices must also “continue the current practice of explaining to witnesses, alleged discriminatees and parties that an individual’s immigration status is not relevant to the investigation of whether the Act has been violated.”

The new Memorandum requires regional offices to contact the NLRB’s Division of Operations-Management “as soon as they become aware, in any stage of a case, that immigration status issues may impact our ability to remedy or litigate a potential unfair labor practice violation.”  As under OM 11-62, the Board may, in such cases, consult with other agencies, including to “facilitate [the] process” of seeking a U or T visa or deferred immigration action.  Moreover, in some cases the Board will consider “whether it is appropriate to refer the case to the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices.”

The Memorandum also requires regional offices to explicitly consider alternative remedies to backpay and reinstatement in cases where Hoffman Plastic bars recourse to these remedies.  Among the remedies that regions are directed to consider are bargaining orders, union access to employee contact information, reimbursement or organizing or bargaining expenses, and consequential damages.

Finally, because Hoffman Plastic made clear that even where reinstatement and backpay are unavailable the Board “may utilize the federal courts’ power of contempt to ensure compliance and to deter future violations,” the Memorandum directs regional offices to seek formal settlements in any cases where immigration status issues may play a role.  Doing so “will enable the Agency to seek the immediate assistance of the federal courts in the event of noncompliance with the terms of the extant settlement and in the event of future violations.”

Thus, GC 15-03 goes significantly further than previous documents in ensuring that the rights of undocumented workers are protected.  It requires regional offices to consult with Operations-Management in all cases where immigration status issues arise, for the purpose of considering seeking immigration remedies; it directs explicit consideration of alternative remedies under the Act; and it emphasizes the importance of formal settlements to ensure compliance with the Act in cases where traditional remedies are unavailable due to a discriminatee’s immigration status.

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