Fourth Circuit Finds Employer Must Bargain With Union Over Form I-9 Changes

Fourth Circuit Finds Employer
December 16, 2022

A three-judge panel for the Fourth Circuit found that a major telecommunications provider violated the National Labor Relations Act. Allegedly, the telecommunications provider failed to bargain with its employee’s union representatives. This failure occurred when it attempted to make changes requiring employees to complete new Form I-9 paperwork.

The issue at the heart of the matter arose in 2010. At this time, the employer discovered that most of its employees working in a newly acquired West Virginia operation lacked completed I-9 forms. The company attempted to develop new forms for all affected workers upon learning this.

At this point, the union attempted to bargain over the process by which employees would come into compliance; the employer agreed. However, in 2018 the company chose to audit its compliance with federal Form I-9 requirements. As a result, it found that roughly 95% of employees would need to submit a new Form I-9. This result included forms with missing information and documentation.

The union attempted once again to bargain over the process. This time, the union demanded information about which employees did not comply. In addition, the union requested to know how the company planned to store the sensitive and other documentation securely. The company declined to bargain or provide this information. Instead, it informed the union that it did not believe it had to negotiate. The company argued that federal law required employees to complete the employment eligibility verification (Form I-9). The company further specifies that this requirement falls under the Immigration Reform and Control Act.

In response to the employer’s continued refusal to bargain, the union filed a charge with the National Labor Relations Board (NLRB). The NLRB General Counsel filed a complaint, and an Administrative Law Judge ruled in favor of the union. Accordingly, the judge decided that the company had to bargain.

Though correct about not having to bargain over the decision to require new forms, the company had to negotiate over the effects of this decision to reduce its impact on employees. In addition, the employer had to provide the requested information because it concerned their role as the exclusive collective-bargaining representative for the employees.

The employer appealed this decision, and in 2021, the NLRB affirmed the judgment. It ordered it to comply with the order of the judge. In an unpublished opinion, a panel of judges for the Fourth Circuit affirmed this decision by NLRB. The panel found that the company had unlawfully refused to bargain with its worker’s union.

As this case illustrates, companies should not overestimate compliance requirements for Form I-9. They can often avoid issues, such as errors and missing documentation, by using an electronic I-9 management tool. This tool can guide personnel through the complex process. It also ensures secure storage of forms and documentation.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.