March 3, 2023

In an unpublished opinion, the U.S. Court of Appeals for the Fourth Circuit has affirmed an order by the National Labor Relations Board (NLRB) concerning Form I-9 corrections. This affirmation holds that a communication company violated Section 8(a)(1) and (5) of the National Labor Relations Act (NLRA). The violation involved failing and refusing to supply workers of the Union with a request for existing employees to fill out new I-9 forms. The notice would have also provided a chance to negotiate over the request’s effects.

In 2013, the communications company found that it did not comply with the employment eligibility verification requirements (Form I-9). This form is part of the Immigration Reform and Control Act of 1986 (IRCA). Due to this issue, the company notified all employees affected, including those the Union represented.

The company also attempted to bargain with the Union. The attempts concerned the review and maintenance documents necessary for completing Form I-9s. In addition, it included the company’s willingness to assist Union members who struggled to supply the required documentation.

In 2019, the company found it did not comply with the IRCA’s I-9 record-keeping requirements. In response, it notified the affected employees and Union members, asking them to fill out new forms. However, the company did not inform the Union. It also refused to negotiate with the Union, unlike in 2013.

The Union filed an unfair labor practice charge with the NLRB. However, the company claimed it did not have a duty to negotiate over the decision to have employees complete new I-9 forms since it had to comply with the ICRA’s legal mandates. After ruling in the Union’s favor, the NLRB sought enforcement by the Fourth Circuit. However, the company cross-petitioned to have the NLRB’s order reviewed.

The Fourth Circuit agreed with the Union and NLRB. According to the Fourth Circuit, refusing to negotiate collectively with employees’ union representatives is an unfair labor practice. This statutory duty mandates that employers bargain in good faith concerning hours, wages, and other terms and conditions of employment. However, NLRB does not require employers to negotiate concerning non-discretionary actions required by law.

Though the Court recognized the company’s argument about complying with the I-9 legal obligations, it held firm on its decision. According to the Court, the company failed to consider the impact and effects of requesting employees to complete new Form I-9s. In this case, the Court cited how this request could affect its employees’ terms and conditions of employment. However, the Court agreed that the company held no obligation to bargain about having its employees complete Form I-9s. It also agreed with the NLRB’s stance.

The NLRB stated that the company could negotiate other issues when completing the forms. Examples include how and when the workers would present their documentation, details concerning the process to correct errors and omissions on Form I-9, how the company would assist workers who were having difficulty completing the form on time, and whether the company would keep copies of the documentation. The Court also noted that the company had negotiated with the Union on such matters in 2013.

This case shows the importance of following the appropriate procedures when completing Form I-9. The best way to ensure compliance with I-9 regulations and complete forms is by using an electronic I-9 system that offers guidance when completing the forms. It also provides secure storage for all forms and related documents.

Streamline your hiring process with an automated employment eligibility verification and ensure compliance today with I-9 Compliance.

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