E-Verify Checks Performed by the Union

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A union may lawfully complete I-9 Forms and perform E-Verify checks of members. However, even if the Union does so, the liability for any violations of immigration law that may occur through improper processing by the Union remain with an Employer.

An Employer can negotiate with a Union over the delegation of responsibility to complete Form I-9s and perform E-Verify checks.

More Information:

Background on E-Verify

Federal Acquisition Regulation (FAR) final rule requires that as of Sept. 8, 2009, federal contractors with contracts containing the FAR E-Verify clause must use and enroll in E-Verify as a condition of their contract.

Employers enrolled in E-Verify must check the employment eligibility of all new hires, as well as all existing employees assigned to work on the contract. Federal contractors also have the option to check the employment eligibility of all employees, which might be preferred if it is too difficult to determine which existing employees are assigned to work on the contract. The main factor in determining whether an employee is performing substantial duties applicable to the contract is whether the involvement is direct or indirect, and not the amount of time spent working under the contract.

Only companies subject to the E-Verify federal contractor requirement are permitted to use E-Verify to check the employment eligibility of existing employees.^[1] The Memorandum of Understanding which federal contractor and subcontractor users of E-Verify execute requires that the company:

Prepare a current Form I-9 for the existing employees that it runs through the system; or
Ensure that the previously completed Form I-9 complies with the E-Verify documentation requirements, that is: (1) that the employee’s work authorization has not expired; and (2) that the employee’s basis for work authorization has not changed.

Employers who voluntarily participate in E-Verify must use it for all new hires. In addition, voluntary users of E-Verify may not prescreen applicants for employment or check employees hired before the Employer enrolled in E-Verify.

It is permissible for an employer to contract with a third-party to have that entity complete the E-Verify on behalf of employees. However, the employer is still liable for any violations of the laws.

Self-Check is a part of E-Verify. It is an online service through which workers can check their own employment eligibility status and ensure that employment authorization records are accurate before getting a job.^[2] Workers are able to deal with any data mismatches found before being hired and checked by an E-Verify participating employer.

E-Verify and Labor Organizations

For Employers who receive workers through hiring halls, finding out that a worker is unauthorized after they are on the jobsite creates additional problems along with having to find another worker. For this reason, it is desirable for an Employer to have assurances from the referring Union that the workers are work authorized when they are referred.

In original draft regulations of the Immigration Reform and Control Act of 1986 (IRCA), Unions would have been required to comply with strict employment verification requirements, including Form I-9 certification.^[3] Unions opposed these regulations and were ultimately successful in being excluded on the grounds that they are not “recruiters or referrers for a fee.”

While Unions are not required to obtain workforce authorizations for members, through collective bargaining that responsibility can be delegated to them. This delegation of authority would not relieve Employers of liability for violations of IRCA, but it is legal for the unions to use E-Verify.

E-Verify Check and Form I-9 Completion by Unions

There is no authority for the proposition that a Union is prohibited from undertaking the performance of the E-Verify check or completion of Form I-9s for Union members. Indeed, labor organizations have, in several agreements, assumed the obligation to obtain information from members and complete Form I-9s.^[4] As well, the “Handbook for Employers: Instructions for Completing Form I-9,″ published by the U.S. Citizenship and Immigration Services, provides that an employer may contract with another party for its responsibility to complete Form I-9:

Q. Can I contract with someone to complete Form I-9s for my business?

A. Yes. You can contract with another person or business to verify employees’ identification and employment authorization to complete Form I-9s for you. ^[5]^,^[6]

E-Verify simply uses information reported on the Form I-9. And as some Unions have already undertaken to complete the Form I-9s, it is simply a matter of negotiating an extension of that duty to have a Union agree to also complete the E-Verify check.

As previously indicated, if an Employer delegates the E-Verify check to another party, it does not relieve it from penalties for violations. For this reason, it may be prudent to seek indemnification from a Union for any penalties which result from its incorrect completion of the E-Verify check.

Manpower Requests and Workforce Authorizations as a Condition of Employment

It is not a violation of the antidiscrimination provisions of the INA if an Employer makes an offer of employment to a referral from the Union contingent on receiving confirmation of a workforce authorization.

However, if the Employer requires documents beyond those necessary to obtain the workforce authorization, or administers its E-Verify policy in a selective fashion, it will likely be a violation of § 274B(a)(6), 8 U.S.C. § 1324b(a)(6), of the Immigration and Nationality Act (INA). This is referred to as “over-documenting.”

For example, if the Employer only conditions employment offers on employees who are originally from Mexico completing a workforce authorization, that could be considered “pre-screening” and may implicate the Employer in violating the anti-discrimination provisions. Similarly, if the Employer only asks employees from Mexico to provide documents beyond those required to obtain the workforce authorization, this could be a violation.

The U.S. Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), is tasked with enforcing the antidiscrimination provisions of the INA and provides general guidelines regarding the anti-discrimination portions of the law. In an August 19, 2011 letter, the OSC stated:

Requiring applicants to provide proof of their employment authorization before establishing an employment relationship is known as “pre-screening” and may constitute a violation of the anti-discrimination provision of the Immigration and Nationality Act if conducted selectively on the basis of citizenship status or national origin.^[7]

However, if an Employer makes offers of employment contingent on obtaining a workforce authorization, and its E-Verify policy is administered uniformly without regard to the potential employee’s citizenship status or national origin, the Employer would avoid claims that it is violating the anti-discrimination provisions of the INA. ^[8]

With that, to avoid a discrimination claim, an Employer should adopt and apply a facially valid policy that all referred employees properly complete and obtain a workforce authorization, without regard to their national origin, and avoid any steps that could constitute over-documentation.

Self-Check Performed by Members

A potential response by a Union to the Employers’ request that the Union complete the E-Verify could be to instead suggest Employers require referrals provide a Self-Check. This, however, is problematic.

In the August 19^th letter, the OSC responded to a query concerning:

whether a union hiring hall can (1) encourage workers to obtain a positive E-Verify Self Check result so that they can be marketed to potential employers as workers who will not run into any E-Verify issues, or (2) require workers to obtain a positive E-Verify Self Check result query before they can be referred for employment by the union hiring hall.^[9]”

Regarding hiring practices by Employers, OSC reiterated a prior directive from the U.S. Citizenship and Immigration Services (USCIS), the primary agency responsible for administrating and regulating the use of E-Verify:

USCIS guidance further provides that employers may not require employees or potential employees to use Self Check under any circumstances.

OSC further opined on Unions ability to impose Self-Check requirements:

The union hiring hall’s practices may violate USCIS regulations; specifically USCIS guidance provides that a positive Self Check result should not be a condition of membership into any group or organization and is not required for receipt of any benefits, service, or good from a federal, state or local agency or a private party.

Against that backdrop, it is apparent that a suggestion by the Union that Employers require referrals provide positive Self-Checks is misguided. Any requirement that members or potential employees use Self-Check is unlawful.

Labor Law Considerations

There does not appear to be any grounds on which a Union member could succeed on a claim that the Union violated its duty of fair representation under §§ 8(b)(1)(A) and (2) of the National Labor Relations Act by administering the hiring hall in a discriminatory fashion if the Union were to respond to manpower requests seeking only referrals who have completed a Form I-9 or whom the Union has checked through E-Verify.

“A union commits an unfair labor practice if it administers the exclusive hall arbitrarily or without reference to objective criteria and thereby affects the employment status of those it is expected to represent.^[10]” A Union breaches its duty when its actions are “arbitrary, discriminatory, or in bad faith.^[11]”

Making referrals based on objective criteria which mirrors a manpower request – such as, only referring those members for whom the Union has obtained a workforce authorization – would not be discriminatory or in bad faith. For that reason, it appears dubious that a member’s claim for a breach of the duty of fair representation has any merit.

As an aside, it is worthwhile to point out that the National Labor Relations Board, Office of the General Counsel, in an Advice Memorandum, held that implementation of and participation in E-Verify, when an Employer is not required to do so but does so voluntarily, is a mandatory subject of bargaining “because, like drug/alcohol testing, it affects terms and conditions of employment, including the potential to affect the continued employment of employees who become subject to it. ^[12] “The Board itself has subsequently also held that E-Verify is a mandatory bargaining subject.^[13]

If an Employer is required to participate in E-Verify because it has entered into a contract containing the FAR E-Verify clause, there is no duty to bargain over implementation because Employers are relieved of their duty to bargain over statutorily mandated changes in terms and conditions of employment.^[14]

The law is undeveloped as to whether bargaining over who would undertake completing the Form I-9s and performing the E-Verify checks would be considered a mandatory or permissive subject of bargaining. There are compelling arguments to be made for both sides. The delegation of responsibility could be viewed as a mandatory topic because for federal contractors the test could be an underlying pre-requisite to employment. The subject of performing the E-Verify and completing the Form I-9s, together with who does that task, are so inextricably intertwined that they cannot be separated. On the other hand, the issue could be framed more narrowly and resolved by the Board on the grounds that bargaining over issues for prospective employees is permissive. If referrals from the hiring hall were construed to be prospective employees, bargaining is not mandatory over their terms and conditions of employment.

[1] Performing an E-Verify check and submitting a Form I-9 differ. Newly hired employees must complete Form I-9 Employment Eligibility Verification, regardless of whether they are assigned to a federal contract. Federal contractors, working on contracts with the FAR E-Verify clause, must also verify certain employees with E-Verify.

[2] https://selfcheck.uscis.gov/SelfCheckUI/

[3] See 52 Fed. Reg. 8740, 8763-64.

[4] See e.g., Teamsters Local Union No. 122 v. August A. Busch & Co., 334 NLRB 1190, 1127 (2001) (“[Employer] also proposed eliminating that provision of the contract which called for [the Union] to verify the I-9 forms of prospective spare employees.”); Southern California Air-conditioning and Refrigeration Service Master Labor Agreement; Article 5.03 (“The local union shall complete a U.S. Immigration and Naturalization Service Form I-9 for each employee and applicant prior to dispatch.”) (http://www.arcamca.org/PDFs/Service_MLA_Document_090112_083115.pdf )

[5] See “Handbook for Employers: Instructions for Completing Form I-9” Form M-274, U.S. Citizenship and Immigration Services; April 30, 2013; P. 48, Q. 39.

[6] In a prior version of this handbook, the USCIS affirmatively indicated that an employer could negotiate with a Union the responsibility to complete Form I-9s; this has subsequently been eliminated in the most up to date version of the handbook. (“Q. As an employer, can I negotiate my responsibility to complete Form I-9 in a collective bargaining agreement with a union? A. Yes. However, you are still liable for any violations of the employer sanctions laws.” April 3, 2009 version; P. 37, Q. 44)

[7] http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2011/146.pdf

[8]An Employer would be in violation of the anti-discrimination provisions of INA if it requires that manpower referred from the Union provide a positive E-Verify Self Check: “USCIS guidance further provides that employers may not require employees or potential employees to use Self Check under any circumstances.” (OSC; August 19, 2011 letter)

[9] http://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2011/146.pdf

[10] Boilermakers Local No. 374 v. NLRB, 852 F.2d 1353, 1358 (D.C. Cir. 1988).

[11] Vaca v. Sipes, 386 U.S. 171 (1967).

[12] Pacific Steel Casting Co., Case 32-CA-25763 (February 6, 2012) (Barry J. Kearney, Associate General Counsel; Division of Advice).

[13] The Ruprecht Co. & Unite Here Loc. 1, 366 NLRB No. 179 (Aug. 27, 2018)

[14] Murphy Oil USA, 286 NLRB 1039, 1042 (1987) (finding no violation of Act where employer made unilateral work-rule change mandated by OSHA); Standard Candy Co., 147 NLRB 1070, 1073 (1964) (finding no violation of Act by unilaterally increasing wages as required under FLSA minimum wage provisions).