NLRB GC Memo Addresses Protections for Immigrant Workers

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The General Counsel of the National Labor Relations Board, Jennifer Abruzzo, issued a memo on November 8, 2021, emphasizing that undocumented workers are still entitled to the protections of the National Labor Relations Act. The memo sets forth actions to ensure the rights and remedies for immigrant workers under the NLRA. Among these include the following:

  • The Board will seek immigration relief for witnesses and victims of unfair labor practices. This includes deferred action, parole, continued presence, U or T status (special visas/status for certain crime or trafficking victims), a stay of removal, or other relief as available and appropriate.
  • It will certify applications for U or T visas/status for individuals who have been helpful to a NLRB investigation or litigation, and have suffered harm as a victim of a qualifying crime.
  • Immigration-related threats and retaliatory actions in unfair labor practice cases involving immigration status or work authorization will be taken seriously.
  • Board Agents will be flexible and empathetic in working with hesitant immigrant witnesses. This includes assuring them an individual’s immigration or work authorization status is not relevant to the investigation and they will not be asked about it. It will also be flexible with meeting at neutral locations, providing bilingual materials and translators, and allowing for alternative contact information, among other things.
  • Board Regions will tailor appropriate remedies. For example, if an employee cannot be reinstated due to lack of work authorization, a conditional reinstatement order that allows for time to obtain work authorization may be an option. The GC reiterates that other available remedies include consequential damages; the publication of the Notice to Employees; a Notice reading in the presence of management; payment into a remedial monetary fund in lieu of backpay; and even sponsorship of work authorization. It may also include supervisory training on worker rights under the NLRA, non-discriminatory immigration practices, and the appropriate use of E-Verify.
  • Regions should also generally oppose a respondent’s intention to introduce evidence or question witnesses about their immigration status or work authorization during the liability phase of a ULP proceeding.
  • The GC will consider Section 10(j) injunctive relief in all cases where illegal intimidation regarding immigration status threatens the exercise of Section 7 rights and the Board’s remedial authority.
  • The Board will work with other agencies. Under a deconfliction MOU between ICE and the Board (which prevents conflicting enforcement actions between immigration agencies and labor enforcement agencies), ICE will typically refrain from enforcement activities at a worksite that is the subject of an existing investigation of a labor dispute and any related proceeding. In addition, the Board will work with the Department of Justice to address labor-related violations of immigration law.