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Companies Should Heed NLRB GC's Immigrant Protection Focus

*This article was originally published by Law360
During the Trump administration, the National Labor Relations Board was not known for advancing immigrant worker rights. That changed last year, when Jennifer Abruzzo became its general counsel.
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For her, protecting immigrant worker rights is a top priority. As she explained in a recent announcement:

All too often, immigrant workers are subject to unlawful intimidation tactics that seek to silence them, denigrate their right to act together to seek improved wages and working conditions, and thwart their willingness to report statutory violations. The NLRB will do everything we can to protect immigrant workers to exercise their rights under the [National Labor Relations Act] and to pursue any interference with those rights by participating in the NLRB's processes.[1]

Abruzzo's Nov. 8, 2021, Memorandum

To that end, on Nov. 8, 2021, Abruzzo issued a memorandum to all field offices, describing new procedures to make the NLRB an accessible and safe place for immigrants that treats them with dignity and respect.[2]

Key to that effort, according to Abruzzo, is working with the US Department of Homeland Security to safeguard from deportation immigrants involved in board compliance proceedings. Thus, upon a complaining party or witness's request, the board will press the DHS for deferred action, parole, continued presence, U or T status, a stay of removal, or other relief for those individuals.[3]

Additionally, the board is taking aim at immigration-based retaliation by seeking immediate and full relief against offending employers and, if warranted, their attorneys.

The memorandum also announces measures to make board agents more flexible and empathetic toward immigrant workers in compliance proceedings.

Among those measures, the memorandum directs board agents to:

  • Tell affiants that an individual's immigration and work authorization status is irrelevant to the investigation and will not be questioned;
  • Refrain from requesting sensitive personal identifiable information — such as tax identification and Social Security numbers — during the proceeding's merits phase;
  • Find a neutral place to meet witnesses who balk at entering a federal building;
  • Consider utilizing alternative contact information for witnesses reluctant to divulge their home address in an affidavit;
  • Refrain from sharing NLRB witness information with the US Immigration and Customs Enforcement, unless the witness asks the board agent to do so to obtain an immigration benefit;
  • Avoid asking affiants whether they are known by names other than the one that they use at work; and
  • Refrain from questioning a non-English speaker's credibility just because the individual cannot precisely recite in English threats that they have heard.

Abruzzo called for similar flexibility during a compliance proceeding's remedies phase.

Reinstatement and back pay are the default remedies in unlawful discharge cases. But, if the aggrieved employee is not authorized to work in the US, the regional office should collaborate with the board's immigration team and Office of Legal and Government Ethics to fashion an appropriate remedy.

Also, where warranted, regional offices should require respondents to:

  • Make employees whole for their economic losses;
  • Publish a notice acknowledging the respondent's wrongdoing;
  • Read the notice to supervisors and managers; and
  • Contribute to a remedial monetary fund in lieu of back pay and sponsor work authorization — including all associated fees — if employee lost their work authorization due to the respondent's unfair labor practice.

The memorandum makes clear that the board will not tolerate immigration-based witness intimidation and coercion.

To prevent a compliance proceeding from becoming an inappropriate fishing expedition into a witness's immigration or work authorization status, board attorneys will object during the liability phase, when a respondent tries to introduce evidence or question witnesses about their immigration or work authorization status — unless the respondent shows that it has a good faith, factual basis for an immigration-based affirmative defense.[4]

Respondents that use immigration status to threaten an employee's exercise of their Section 7 rights or the board's remedial authority could face a Section 10(j) injunction.

Also, regardless of the aggrieved individual's immigration status, Abruzzo will consider Section 10(j) injunctions and protections against removal for employees for whom interim reinstatement is appropriate.

Finally, the memorandum announces that Abruzzo will continue to pursue interagency collaboration with the DHS and its subagencies, to strengthen deconfliction procedures and provide relief for witnesses and unfair labor practices victims.

Abruzzo's May 2 Memorandum

In a second memorandum, issued on May 2, Abruzzo's office announced additional protections for immigrants involved in compliance proceedings.[5]

Chief among them, regional offices must issue a fact sheet — available in English and Spanish — to all witnesses, advising them that:

  • Immigration status is irrelevant to whether there has been an NLRA violation;
  • Information obtained during NLRB investigations is protected; and
  • Charging parties and witnesses may ask the NLRB to seek immigration relief if necessary to allow them to participate in board proceedings or exercise NLRA rights.[6]

Also, board agents must orally advise witnesses, before taking their affidavit, that an individual's immigration and work authorization status is irrelevant and will not be questioned. Likewise, information officers who help visitors or callers to prepare a draft charge must give affiants a copy of the fact sheet along with the draft charge.

International Letters of Arrangement

Furthering her effort to protect immigrant workers, last month, Abruzzo launched partnerships with El Salvador,[7], Guatemala[8], and Honduras[9] to ensure that workers from those countries can freely exercise their NLRA rights in the US.

The partnership agreements — termed letters of arrangement — strengthen ties between the NLRB and those governments. Also, the agreements redouble efforts to inform workers from those countries, their employers, and Salvadorian, Guatemalan, and Honduran business owners in the US about NLRA rights and responsibilities.

In September 2021, the NLRB signed a similar letter of arrangement with Mexico.[10]

Takeaway

Abruzzo rests her initiative on her core belief that "[w]hen workers know their rights, they are empowered to advance themselves and their communities." [11]

The US Supreme Court has long recognized that the NLRA covers workers, without regard to their immigration status.[12] Recognizing that, most employers endeavor to do the right thing by all of their employees.

Still, when dealing with immigrants, some employers ignore the act, thinking that they could do so with impunity. Some assume that immigrant workers are unaware of their statutory rights.

Others assume that aggrieved immigrants, fearful that complaining may jeopardize their ability to remain in this country, will choose to suffer in silence. And, in recent years, the agency gave employers little reason to believe that protecting immigrant rights was an enforcement priority.

That will change if Abruzzo has her way. Following her lead, the board will do more to educate immigrants about their NLRA rights and the statute's protections. It will be more accessible and accommodating to immigrant workers. It will take steps to protect immigrants involved in compliance proceedings from removal. And it will crack down on employers that take advantage of immigrants.

It follows that immigrants will be emboldened to press for their rights, support union organizing efforts, and complain to the board when mistreated. Thus, employers that disregard immigrant rights under the NLRA will increasingly risk being hauled before the board in expensive and time-consuming compliance proceedings.

Abruzzo's effort in this area is of a piece with other initiatives to make the board more worker friendly, including:

  • Her attempt to persuade the board to ban captive audience meetings about unionization;[13]
  • Her Section 10(j) injunction initiative aimed at employers that threaten or coerce employees during organizing campaigns;[14]
  • Her attempt to persuade the board to embrace anew the long-renounced Joy Silk doctrine, which required employers to recognize and bargain with a union based on a card check, unless the employer established a good faith doubt related to the card's authenticity;[15] and
  • Her contention that scholarship athletes who generate revenue for their schools are employees under the NLRA.

None of it augurs well for employers.


[1] See National Labor Relations Board, NLRB General Counsel Issues Memo on Ensuring Access for Immigrant Workers to NLRB Processes, (May 2, 2022) (last visited May 20, 2022).
General Counsel Abruzzo's approach echoes the Board's approach to immigration issues during the Obama administration. See Memorandum from Richard A. Siegel, to All Regional Directors, Officers in Charge, and Resident Officers, Updated Procedures in Addressing Immigration Status Issues that Arising during NLRB Proceedings, (June 7, 2011) (last visited May 31, 2022) ("Siegel Memorandum").
[2] See NLRB, Office of Public Affairs, General Counsel Jennifer Abruzzo Releases Memo on Ensuring Rights and Remedies for Immigrant Workers, (Nov. 8, 2021) (last visited May 31, 2022) ("November 8th Memorandum").
[3] Id.
U visas are available to victims of specified crimes who have suffered physical or mental abuse and who assist in investigating or prosecuting the crimes. T visas are available to certain victims of human trafficking who help the authorities to detect, investigate, or prosecute the offense. See Siegel Memorandum, supra.
[4] See November 8th Memorandum, supra.
[5] See NLRB, Office of Public Affairs, NLRB General Counsel Issues Memo Ensuring Access for Immigrant Workers to NLRB Processes, (May 2, 2022) (last visited May 31, 2022).
[6] See NLRB, Immigrant Employee Rights under the National Labor Relations Act, (last visited (May 20, 2022).
[7] See Letter of Arrangement between the Office of the General Counsel of the National Labor Relations Board of the United States of America and the Ministry of Foreign Affairs of the Republic of El Salvador through its Embassy and Consulates in the United States of America, (May 10, 2022) (last visited May 20, 2022).
[8] See Letter of Arrangement between the Office of the General Counsel of the National Labor Relations Board of the United States of America and the Ministry of Foreign Affairs of Guatemala, (May 10, 2022) (last visited May 20, 2022).
[9] See Letter of Arrangement between the Office of the General Counsel of the National Labor Relations Board of the United States of America and the Ministry of Foreign Affairs and Internal Cooperation of the Republic of Honduras, (May 10, 2022) (last visited May 22, 2022).
[10] See Letter of Arrangement between the Office of the General Counsel of the National Labor Relations Board of the United States of America and the Ministry of Foreign Affairs of the United Mexican States, (May 10, 2022), (Sept. 2, 2021) (last visited May 22, 2022).
[11] See NLRB, Office of Public Affairs, National Labor Relations Board Inks Workplace Rights Partnerships with the Governments of El Salvador, Guatemala, and Honduras, (May 10, 2022) (last visited May 22, 2022).
[12] See Sure-Tan, Inc. v. NLRB, 467 US 883, 893-94 (1984) (undocumented alien workers are employees under the NLRA).
[13] See NLRB, Office of Public Affairs, NLRB General Counsel Jennifer Abruzzo Issues Memo on Captive Audience and Other Mandatory Meetings, (April 7, 2022) (last visited June 2, 2022).
[14] See NLRB, Office of Public Affairs, NLRB General Counsel Launches New 10(j) Injunction Initiative When Employers Threaten or Coerce Employees During Organizing Campaigns, (Feb. 1, 2022) (last visited June 2, 2022).
[15] Cemex Construction Materials Pacific, LLC, 28-CA-230115, Brief in Support of General Counsel's Exceptions to the Administrative Law Judge's Decision (April 11, 2022).

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