When Labor Law Overlaps with Immigration Law

An Administrative Law Judge (ALJ) of the National Labor Relations Board (NLRB) found an employer was required to bargain with a union over the effects of Frontier’s decision to require employees to complete new I-9 forms and supply certain requested information. See Frontier Communications Corp, JD-42-20 (Oct. 14, 2020). As a former attorney for the NLRB and now an immigration attorney, I find it fascinating when immigration law overlaps with labor law.


In this case, Frontier and its predecessor, Verizon, apparently did a very poor job of I-9 compliance. (for immigration attorneys practicing worksite enforcement, this is not a surprise; rather, is it the usual norm). In 2013, several years after Frontier purchased Verizon, Frontier discovered through an internal I-9 audit (which apparently was not conducted at the time of the sale), it did not have I-9 forms for most of the former Verizon employees. Thus, it requested these employees complete new I-9 forms. After the employees’ union found out about this request, it met with Frontier and the parties agreed Frontier would get new I-9 forms but not retain the supporting documentation.

In late 2018, Frontier conducted another internal I-9 audit and “discovered extensive noncompliance” and determined it needed to obtain new I-9 forms and supporting documentation for approximately 95% of its workforce. It’s unclear how this could be if it had remedied their I-9 issues in 2013 (Presumably, Frontier did not carefully review the I-9 forms completed in 2013.)
On July 19, 2019, Frontier notified its employees by email of the need to submit new I-9 forms, through I-9 Advantage, its new an electronic I-9 process. When the Union found out about this, it wrote Frontier asking the company that if would be requiring this of employees who previously completed an I-9 form and provided supporting documentation. Further, on August 1, the Union requested a list of employees who Frontier intended to require completing a new I-9 form. Frontier responded that many of those who completed paper I-9 forms in 2013 would be required to complete electronic I-9 forms due to errors on the paper I-9 forms. Frontier explained this was necessary for compliance with federal law. Despite this, Frontier supplied a list of employees who were required to complete a new I-9 form.

After this exchange of emails, on August 8, the Union requested a list of all employees without an I-9 form and an incomplete/incorrect I-9 form and the specific deficiencies. Frontier declined to provide this information, asserting the Union does not have the right to this information. In response, the Union demanded bargaining concerning the request of new I-9 forms from employees.
After declining to bargain, Frontier continued with its efforts to achieve I-9 compliance, eventually advising five employees were subject to removal from the payroll for non-compliance. This never occurred. However, the Union continued to renew its request for bargaining and Frontier continued to refuse.

NLRB Charge

When the Union did not get the information it requested or the opportunity to bargain about the effects of completing new I-9 forms, it filed a charge with NLRB alleging Frontier violated Section 8 (a)(5) of the National Labor Relations Act (NLRA or Act).

Basic Law of Duty to Bargain under the NLRA

It is important to understand the basics of bargaining and information requests since presumably most immigration attorneys and many HR personnel are not familiar with the NLRA. The ALJ summarized the basics as follows:

It is well established that an employer has an obligation to give a union notice and an opportunity to bargain about the effects on union employees of a managerial decision even if the employer has no obligation to bargain about the decision itself. The Board requires pre-implementation notice because there may be alternatives that the employer and union can explore to avoid or reduce the impact of the decision without calling into question the decision itself. [citations removed].

An employer is obligated under the Act to supply information requested by the union that is potentially relevant and would be of use to the union in fulfilling its responsibilities as the employees’ bargaining representative. Generally, information concerning wages, hours, and other terms and conditions of employment for bargaining unit employees is presumptively relevant to the union’s role as exclusive collective-bargaining representative.

Employer’s Duty to Bargain over Effects of Frontier’s Decision

Concerning Frontier’s requirement that employees submit new I–9 forms, the ALJ found it is a mandatory subject of bargaining. “The purpose of the I–9 form is ‘to document verification of the identity and employment authorization of each new employee;’” thus, the “requirement that employees complete new I–9 forms clearly affects terms and conditions of employment as employees who have difficulty completing the I–9 form risk losing their jobs, among other potential consequences.” The ALJ cited Ruprecht Co., 366 NLRB No. 179 (2018), where the Board found an employer’s enrollment in E-Verify was a mandatory subject of bargaining because it affects the terms and conditions of employment.

Based upon the above finding, the ALJ found: Frontier violated Section 8(a)(5) of the NLRA by failing to provide the Union an opportunity to bargain over the effects of its decision to require employees to submit new I–9 forms. The ALJ found Frontier’s position that it did not have to bargain over the decision to require new I–9 forms arguably had merit because the I-9 forms were not in compliance and it was required by immigration law to have a valid I–9 form for each employee. But the ALJ found:

The Union, however, had a valid interest in effects bargaining to explore options for reducing or avoiding the impact that the new I–9 form requirement would have on employees. Indeed, given the history of lost or misplaced forms and repeated requests for new I–9 forms, along with the possibility that some employees might need time to locate/obtain and provide appropriate documentation of their identity and employment authorization, there were several topics that Respondent and the Union could address and possibly resolve through effects bargaining.

Here, there is no dispute that Respondent had to comply with IRCA. That obligation, however, did not preclude effects bargaining, as there are issues related to IRCA compliance where Respondent and the Union had room to negotiate, such as: the amount of time Respondent would give an employee to obtain and present documents that establish the employee’s identity and employment authorization; …. and the process that would apply to employees who had difficulty presenting appropriate documentation in the allotted timeframe. [emphasis added].

Employer’s Duty to Supply Requested Information

The ALJ found the Union’s requests for information on August 1 and 8 concerning the employees with incomplete I-9 forms and the specifics of the errors/omissions of the I-9 forms were “presumptively relevant to the Union’s role as the exclusive collective bargaining representative.” Moreover, the ALJ stated: “by asking Respondent to identify the employees covered by the new I–9 form requirement and specify (or categorize) how their previously completed I–9 forms were deficient, the Union effectively asked Respondent about matters that relate to employee terms and conditions of employment since employees who did not (or could not) complete new I–9 forms risked adverse employment consequences.”

After determining the Union sought relevant information in its information requests, the ALJ found the August 8 information request, specify what was wrong with the previously completed I–9 forms, was “reasonable” and “appropriate, particularly given the fact that Respondent previously (in 2013) required employees to submit new I–9 forms because the forms that employees completed while working for Respondent’s predecessor could not be located.” Thus, by refusing to provide August 8 information request Frontier violated Section 8(a)(5) of the NLRA. Since Frontier provided the names requested on August 1, Frontier did not violate the NLRA on that information request.


In an era where so many employers are realizing their poor I-9 compliance, issues involving correcting and mitigating the I-9 forms is front and center for many immigration attorneys. Even though the number of employers with a unionized workforce is in the single digits, it is important for employers to remember their bargaining obligations. This is the second decision in less than three years, where immigration law has intersected with labor law. So, we should be mindful of the NLRA. It should be noted Frontier has the opportunity to appeal the ALJ’s decision to the NLRB. Thus, we may not have seen the end of these issues.

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