Earlier this month, the United States Supreme Court declined to review a ruling from the Court of Appeals for the District of Columbia Circuit holding that unauthorized aliens are "employees" under the National Labor Relations Act (NLRA) and therefore entitled to cast votes in a union election.
In Agri Processor Co. v. NLRB, the employees elected the United Food and Commercial Workers Union Local 342 as their bargaining agent in 2005 election; however, the employer refused to bargain with the union on the basis that 17 of the 21 employees who cast ballots were not legally authorized to work in the United States, and therefore not "employees" under the NLRA.
In a 2-1 decision that was affirmed by the D.C. Circuit, the National Labor Relations Board held that the certification of Local 342 was valid because the voters were employees under the NLRA even if they were hired in violation of the Immigration Reform and Control Act. That decision will stand now that the Supreme Court has passed on its opportunity to review the case. With the passage of the Employee Free Choice Act appearing all but certain, authorization cards signed by unauthorized alien employees will likely be held valid as well.
Yesterday the Department of Homeland Security (DHS) issued a supplemental final rule regarding employers' obligations upon receiving a "no match" letter from the Social Security Administration (SSA). (A "no match" letter states that an employee's reported Social Security number appears invalid). The final rule is identical to the department's previous rule, which was blocked from implementation by a California federal district court; however, DHS said it hopes that additional explanatory material provided in the rule will address the issues raised by the court. For more information, read DHS's press release.
Under the final rule, the SSA will be required to include in all no-match letters information telling employers that they are required to resolve discrepancies or risk legal liability. The rule also provides employers with a "safe harbor" provision, which provides steps employers may take when they receive a no-match letter. DHS will not use anemployer's receipt of a no-match letter as evidence to find that it violated the law by knowingly employing unauthorized workers as long as the employer follows the safe harbor rules. For text of the final rule, click here.
The final rule will not be effective until published in the Federal Register, and even then it will not go into full effect until the federal court lifts its injunction against the rule - assuming the court is convinced the final rule is lawful. Stay tuned to the Stoel Rives World of Employment for further updates.
Still using the old form? Don't worry - using the new one won't be mandatory until 30 days after appearing in the Federal Register (and this hasn't even happened yet), but you can start using the new form now if you want to.
The last substantive changes to the I-9 were made in 2007. If you're interested, you can read the USCIS's Press Release describing those changes. If you have general questions about the I-9, read the 2007 I-9 Handbook for Employers, also from the USCIS. And, feel free to complain to your congressperson about the Paperwork Reduction Act.