Employer Takeaways from NLRB Top Cop Immigration Memo

On Nov. 8, National Labor Relations Board General Counsel Jennifer A. Abruzzo issued General Counsel Memorandum 22-01, titled "Ensuring Rights and Remedies for Immigrant Workers Under the NLRA."

The memorandum restated the NLRB's long-held view that the National Labor Relations Act applies and affords its protections to all individuals in an employer-employee relationship, regardless of their immigration status or work authorization.

In the memorandum, the NLRB's general counsel, who functions as the agency's chief enforcement officer, recommitted to "zealously guard[ing] the right of immigrant workers to be free of immigration-related intimidation tactics" designed to prevent employees from engaging in protected concerted and union activities and to deter employees from reporting violations under the NLRA.

The memorandum is not so much a departure from previous NLRB policy as a restatement of existing policy and a public recommitment to conduct outreach to immigrant communities. It is also a message to the business and legal communities that the current general counsel is committed to this policy in all aspects of the NLRB's investigation, litigation, enforcement and remedial activities.

The NLRB has long had an agreement with the U.S. Department of Homeland Security so that the two agencies can communicate with each other when appropriate.

For example, the NLRB and DHS can communicate and ensure that employees' rights to organize are not infringed upon if an employer contacts Immigration and Customs Enforcement seeking to have employees who may be engaged in union organizing or other forms of activity that are protected by the NLRA deported.

Similarly, the NLRB has long sought U and T visas where appropriate to protect unauthorized employees from deportation as a result of protected concerted activities.

Abruzzo also committed to requesting deferred action from DHS where appropriate, even in the absence of a visa.

The memorandum is also consistent with Abruzzo's previously announced policy of seeking all available remedies to address unfair labor practice violations. In the memorandum, Abruzzo reaffirmed that "the [board's] remedial initiatives apply to all charging parties and discriminates without regard to immigration status."