Board Holds Employer Must Bargain with Union Before Enrolling in DHS E-Verify Program

In Ruprecht Co.,[1] the Board held that an employer violated the NLRA by unilaterally enrolling in the E-Verify program without first bargaining with the union. E-Verify is an online program managed by the U.S. Department of Homeland Security that helps employers determine whether employees are eligible to work in the United States.  Pursuant to agency guidance, E-Verify may not be used by employers to pre-screen individuals for employment.  The program may only be used once an offer of employment has been extended and accepted.

In January 2015, a meatpacking company received a subpoena from the U.S. Immigration and Custom Enforcement Agency (“ICE”) requesting documents regarding its employee verification process.  Following the receipt of the subpoena, the company unilaterally enrolled in E-Verify in order to avoid future audits by ICE.  The company used E-Verify only on new employees; existing employees were not affected by its implementation. 

The company argued that its unilateral implementation of the program did not violate the Act because it did not affect existing employees. In rejecting this argument, the Board adopted the ALJ’s reasoning that the obligation to bargain extends to the terms and conditions of employment of the employer’s employees.  Because E-Verify may only be applied once an employment offer has been accepted, the individuals impacted by the program are, in fact, employees.

The Board further explained that the company’s unilateral enrollment in the E-Verify program “compromised the union’s ability, and the [company’s] incentive, to engage in the give-and-take process with respect to E-Verify by changing the starting point for bargaining.”  Consequently, the Board ordered the company to rescind its participation in E-Verify, at the union’s request.

[1]           The Ruprecht Co., 366 NLRB No. 179, 212 LRRM (BNA) 1481 (Aug. 27, 2018).