Employer Was Required to Give Union Notice and an Opportunity to Bargain Before Requiring Employees to Supply New I-9 Forms and Supporting Documents: NLRB | Practical Law

Employer Was Required to Give Union Notice and an Opportunity to Bargain Before Requiring Employees to Supply New I-9 Forms and Supporting Documents: NLRB | Practical Law

In Frontier Communications Corp., the National Labor Relations Board (NLRB) held that before requiring employees to supply new I-9 forms and supporting documentation, an employer was required to provide the employees' union with notice and the opportunity to bargain about the effects of that requirement.

Employer Was Required to Give Union Notice and an Opportunity to Bargain Before Requiring Employees to Supply New I-9 Forms and Supporting Documents: NLRB

by Practical Law Labor & Employment
Law stated as of 07 Dec 2022 • USA (National/Federal)
In Frontier Communications Corp., the National Labor Relations Board (NLRB) held that before requiring employees to supply new I-9 forms and supporting documentation, an employer was required to provide the employees' union with notice and the opportunity to bargain about the effects of that requirement.
On May 26, 2021, in Frontier Communications Corp., the panel (Board) heading the NLRB's judicial functions held that the employer violated Sections 8(a)(5) and (1) of the NLRA by failing and refusing to provide the union with:
  • Pre-implementation notice of and an opportunity to bargain about the effects of its decision to require bargaining unit employees to provide new I-9 forms and supporting documentation by a specified near future date.
  • Requested information relevant and necessary to the union's engaging in meaningful collective bargaining about the effects of the employer's decision to require bargaining unit employees to provide those forms and documents.
The Board also concluded that the union did not waive its rights to pre-implementation bargaining about the effects of the employer's decision because when it learned of the employer's requirement in an email to employees only, it promptly informed the employer that it protested the employer's failure to provide notice and an opportunity to bargain and requested information that was necessary for the union to engage in effects bargaining, which the employer failed to provide.
(370 N.L.R.B. No. 131 (May 26, 2021).)
The practical implications of this case are that the Board requires employers to provide unions notice of and an opportunity to bargain about the effects of their decisions to require bargaining unit employees to provide new I-9 forms and supporting documentation. The unfair labor practice complaint did not allege and the Board did not rule that the employer was also required to bargain about its decision to require employees to provide new forms I-9 and supporting documents after audits showed updated and more complete records were needed to comply with federal I-9 requirements.

UPDATE

On December 7, 2022, the Fourth Circuit issued an unpublished opinion granting the Board's application for enforcement of its order and denying the employer's cross-petition for review (NLRB v. Frontier Commc'ns Corp., (4th Cir. Dec. 7, 2022)).