Suspending employers' immigration-related duties during labor disputes: a statutory proposal.

• Author: Decker, Annie

Immigration and labor law can be uncomfortable bedfellows. The Immigration Reform and Control Act (IRCA) of 1986 (1) requires employers on pain of sanctions to check employees' work papers, such as Social Security cards and work permits, and to have new hires fill out forms. (2) At the same time, labor and employment laws give workers the right to be free from intimidation and retaliation while engaging in protected activities, such as organizing unions and protesting unsafe working conditions. This Comment addresses situations in which an employer's doubt--sincere or not--about the validity of an employee's papers arises during a labor dispute. (3) Adhering to immigration duties might require the employer to verify work authorization even if doing so chilled workplace rights enforcement; protecting labor rights could bar verification efforts during a labor dispute. The law is unclear about whether immigration duties or labor rights should prevail. This confusion undermines shared national and state policy goals for both workplace protection and immigration control. (4) While the agencies implementing those goals have found much common ground, (5) the specific issue of whether employers should check workers' documents during labor disputes has slipped through the cracks.

This uncertainty hurts the parties involved on the ground: employers, employees, agencies, and courts. Employers who comply dutifully with immigration and labor laws are at a competitive disadvantage compared to noncompliant employers who use document verification after the time of hire as a trump card over employees who voice grievances. (6) Documented workers suffer from lowered wages and workplace standards because they do not report unlawful employer behavior, fearing that employers will replace them with undocumented workers, especially in industries with heavy immigrant worker concentrations. (7) Undocumented workers are harmed because they do not enforce their statutory rights (8) or are fired unlawfully in retaliation for their protected activity. (9) Finally, courts and the relevant agencies face increased enforcement problems; to fill the void they have had to patch together agreements about their respective roles and to create imperfect motive-seeking tests for identifying when employers' verification efforts are unlawful.

Congress is in the best position to address the document-verification uncertainties. (10) In Hoffman Plastic Compounds v. NLRB, the Supreme Court concluded that a different immigration-labor problem "must be 'addressed by congressional action,' not the courts." (11) That invitation tees up the proposal here: Congress should amend IRCA to provide a strong and clear rule suspending employers' verification duties during labor disputes.

1. THE IRCA PROBLEM THROUGH THE LENS OF LABOR LAW

   Congress enacted IRCA in 1986 primarily to "end[] the magnet that lures [undocumented workers] to this country." (12) IRCA establishes procedures for verifying employees' work authorization, prohibits employers from knowingly hiring or continuing to employ undocumented workers, and provides penalties for violations. (13) Yet the text of IRCA does not address how these provisions should interact with either federal or state labor laws. (14) IRCA also does not state directly that employers are under a continuing duty to check work papers later if they did not do so when hiring the worker or if they later suspect, but are not sure, that a worker's documents are fraudulent. (15) As described above, this lack of clarity creates broad policy concerns and on-the-ground problems.

   The following discussion focuses on the National Labor Relations Board's (NLRB) (16) difficulties when considering claims brought under the National Labor Relations Act (NLRA) alleging that employers retaliated against workers engaged in protected activities by requesting their documents. The current NLRB approach exhibits two main problems. First, judges are generally uncertain about where IRCA ends and where labor law begins in the document-verification context. Second, while the NLRB has established that demands for work authorization and adverse actions based on documentation problems can constitute unfair labor practices during labor disputes, there's a hitch: Under the Wright Line causation test, the NLRB General Counsel must prove that the employer took an action that it would not have taken if the worker had not engaged in protected activities. (17) Compliance with IRCA provides employers with a strong, though rebuttable, defense. The following four NLRB cases highlight these problems, beginning with the decision closest in spirit to the proposal here.

   First, the recent North Hills Office Services, Inc. decision properly affirmed that an employer's requests from union supporters for work papers and the resulting discharges under the cover of compliance with IRCA were illegal. (18) The court concluded that the employer's "affirmative defense that it was acting pursuant to its obligations under the federal immigration law [was] laughable" (19) and that "the only logical reason for this odd [document] request, at this suspicious time, was to harass" workers because of their union activities. (20) The General Counsel therefore overcame the employer's Wright Line defense.

   The language in Regal Recycling, Inc., however, points to the hovering uncertainty about IRCA verification requirements. In that case, the employer had discharged employees during a labor organizing campaign after "demanding a mass production of work authorization documents" based on alleged...