The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and the National Labor Relations Board (NLRB) have entered into an agreement that the two agencies will “share information, refer matters to each other, and coordinate investigations as appropriate.” The NLRB may begin referring cases to the OSC when it identifies potential employment discrimination practices based on citizenship status or national origin, including discrimination during the employment verification process. Conversely, the OSC may refer cases to the NLRB when it discovers labor relations issues during its investigations.
The OSC’s primary role is to investigate and enforce the anti-discrimination provisions of the Immigration and Nationality Act (INA), such as discrimination in hiring and firing based on citizenship status and national origin, and discriminatory I-9 and E-Verify practices. The OSC currently investigates anti-discrimination complaints not only from employees, but also from U.S. Citizenship and Immigration Services (USCIS). The NLRB is its newest partner.
While the NLRB’s traditional role has been to ensure employees’ right to unionize and to protect workers from unfair labor practices, it has become more involved in reviewing employers’ I-9 and E-Verify practices. In March 2012, the NLRB reached a settlement with Pacific Steel Casting Company when the company decided to enroll in E-Verify without ensuring that the enrollment would not violate the collective bargaining agreement. As part of the settlement, Pacific Steel withdrew its E-Verify enrollment. This set the precedent for the NLRB to evaluate issues surrounding employment verification practices within labor relations complaints.
This alliance between the NLRB and the OSC and any future agency cross-referral practices should not come as a surprise. As the government moves toward modernizing electronic data storage, sharing information between agencies will become easier. To ensure compliance, and to decrease the probability of cumbersome investigations from multiple agencies, it is important to work with legal counsel to develop and review your company’s employment eligibility verification practices.