While the attention of the news media and the public is fixed on the court and political battles over President Obama’s February immigration order, it has gone relatively unnoticed that federal agencies are continuing to pursue an activist pro-immigration agenda that started long before the president’s declaration.
A prime example is the Feb. 27 memo issued by National Labor Relations Board General Counsel Richard F. Griffin, Jr. ordering board employees to investigate cases in which they believe employers are threatening illegal immigrants with deportation.
In cases in which employee immigration status issues are raised during board proceedings, Griffin told NLRB regional offices to consider seeking extraordinary remedies against the employers, and seek from U.S. immigration agencies special visas or discretionary relief they can provide the workers, their families and witnesses to shield them from deportation.
He also encouraged NLRB regional offices to refer discrimination charges against employers that arise from immigration law compliance processes to the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices. Griffin cited a 2013 memorandum of understanding between the NLRB and DOJ to work together on immigration issues.
“With millions of undocumented workers waiting for immigration reform, the possibility of a visa and pathway to lawful status for a worker’s entire family can be a powerful incentive for initiating or participating in NLRB proceedings,” note attorneys Eric C. Stuart and Bernhard Mueller of the law firm of Ogletree Deakins.
As a result of the change, they say that when an employer claims it fired a worker to comply with federal immigration law, the NLRB will no longer investigate or determine the worker’s immigration status. The focus of the NLRB’s investigation will be only on whether the discharge violated the National Labor Relations Act.
Stuart and Mueller point out Griffin’s memo goes much further than any prior NLRB directive by instructing regions to consider extraordinary remedies that in the past were reserved for only the most egregious unfair labor practices.
One remedy not available is the award of back pay, which the Supreme Court has ruled cannot be granted to illegal immigrant workers. Employers also cannot be ordered to reinstate them when an employer establishes it would not have hired due to their immigration status.
Griffin’s memo, however, instructs NLRB regional directors to consider “extraordinary remedies historically reserved for the most egregious unfair labor practices,” Stuart and Mueller say. The instructions include informing the NLRB staff that these formal settlements involving unfair labor practice cases means the board at some future time can institute contempt charges in federal court against employers accused of additional unfair labor practices.
Other remedies involve requiring the employer to read the settlement notice to assembled groups of employees, publishing it in newspapers, mandatory National Labor Relations Act training for supervisors and managers, providing union access to employee contact information, reimbursement of union organizing or bargaining expenses, consequential damages, instatement of a qualified referred candidate, and any other remedies that a union or the NLRB believes may be appropriate.
Even if the employer has no prior knowledge that it had inadvertently hired illegal immigrants, Griffin’s memo virtually guarantees that a costly Department of Homeland Security or DOJ compliance investigation will occur if the employer tells the NLRB that compliance with immigration laws forced it to act in certain ways.
Because the potential fines arising from DHS or DOJ investigations can be substantial, the memo is expected to discourage employers from raising the issue of immigration status in NLRB proceedings.
“Given the national attention directed to border security and President Obama’s controversial executive action on immigration, suspending enforcement of particular immigration laws, it is not mere coincidence that the current NLRB has entered the fray on the side of undocumented workers and decidedly against employers,” Stuart and Mueller declare.
By applying the most aggressive remedies available against employers simply because a case involves an illegal immigrant, the board shows it is seeking to give preferential treatment to such cases, Stuart and Mueller conclude. “Moreover, the failure of the General Counsel to explain in a transparent manner the factual basis for this significant initiative suggests an agency agenda unrelated to even-handed enforcement of the labor laws.”
Just days after Griffin’s memo, information surfaced that the Equal Employment Opportunity Commission is jumping on the immigration bandwagon as well. Speaking before the Labor and Employment Section of the Colorado Bar Association, EEOC Denver office director John Lowrie stressed that the commission does not look at whether workers are authorized to work in the U.S. or if they are in the country illegally and will enforce the anti-discrimination laws by making sure that employers do not escape enforcement because they use unauthorized workers.
Last August EEOC and the Mexican Ministry of Foreign Affairs signed a National Memorandum of Understanding strengthening their collaborative efforts to inform immigrant, migrant and Mexican workers of their rights under the EEOC’s non-discrimination laws.