Thursday, May 14, 2015

Padding the Roles?

NLRB Courts Undocumented Workers

I think many people would be surprised to learn that the National Labor Relations Act (NLRA) protects undocumented workers, as well as those who are fully documented and legally allowed to work in the U.S.  I know I was more than surprised.  The punishment that employers face for an unfair labor practice charge that effects such undocumented workers has been limited to admonishments by the Board (NLRB) and maybe some public postings (self-shaming) since these workers are not legally allowed to work, and therefore cannot be afforded either back pay awards or reinstatement if terminated.

Apparently, the NLRB has been concerned that such workers have been reluctant to come forward and report violations because there’s no financial incentive or job protection for them to do so, and because it would expose them as ………………….undocumented.

So, guess what?  The General Counsel of the Board has issued GC Memorandum 15-03, which says that the Board will provide visa assistance to undocumented workers who file unfair labor practice charges. It has also entered into agreements with Mexico, Ecuador and the Philippines to encourage these countries to train their citizens (who may become immigrants to the U.S.) about rights granted to workers under U.S. employment laws, including rights under the NLRA.  These agreements do not make any distinction between documented vs. undocumented, legal vs. illegal.

This puts businesses in a Catch-22.  If they knowingly employ someone who is not legally allowed to work in the U.S., they must terminate the person’s employment under immigration law and/or be subject to severe civil, and possibly, criminal penalties.  On the other hand, terminating an employee in order to comply with federal law can be adjudged as an unfair labor practice under the NLRA.  Who’s the winner here?

Our country was founded by immigrants who chose to make this their home.  Most came here in compliance with immigration laws; worked hard and made a life for themselves, their families and subsequent generations. Thousands more come here each year, in compliance with our immigration laws, and do the same.  It’s been a point of pride for our country to be a place that people seek to make their home, and experience our freedoms and opportunities for prosperity.  Yes, a valid argument can be made that our current immigration laws need to be reformed.  I would not argue against that point.

But make no mistake: The NLRB is not doing this as some altruistic, humanitarian effort for the sake of people they think may be treated unfairly.  They are doing it to increase the sagging roles of union membership and increase the dues coffers.  It amazes me that the Board is not being questioned or challenged on this action. Their motivation is certainly not in the best interests of either undocumented workers or this country as a whole.

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