Show me your papers

Dec. 4, 2012
In this edition of In the Trenches, Acme deals with labor unrest amongst undocumented workers.

Acme’s once-floundering manufacturing plant in Acme Falls has made impressive productivity gains in the past two years, thanks in no small part to Sam Surley, the new plant manager, and the hard-driving crew he put in place. Sam was unfazed by the employee turnover when he took over for Bob Buddy, the beloved boss who was retiring after 30 years at the helm. In fact, Sam was known to say, he was more than happy to weed out “the dead weight.” He filled the resulting vacancies with workers that he brought in through a labor agency. Most of his hires were brand new to Acme Falls and spoke only limited English, but the sheer volume of their output more than made up for the language gap and the challenges of getting them trained and settled in. Until recently, that is.

Sam was quickly earning accolades among the Acme brass as a turnaround artist. Thrilled by the output at Acme Falls, Acme decided it could shutter the small plant in Acme Springs and move that plant’s production to Acme Falls. Sam assured the company that he could make up Acme Springs’ numbers without a sharp rise in labor costs. His plan: eliminate the afternoon break (no wonder Bob’s guys were such slackers, Sam thought), implement a 5% increase in production quotas on each line, and hire a small second-shift crew. “No overtime or shift differential on my watch,” he insisted.

Unbeknownst to Sam, sneaking in among the new hires was an organizer for the Amalgamated Association of Acme Assembly Line Laborers. And it didn’t take long before the combination of an increased workload and a union presence fanned the fires of labor unrest. Naturally, Sam was infuriated. “Most of these guys aren’t even legal. They should be grateful to have a job,” he raged. Sam had reason to suspect, after all, that the labor agency was helping the workers obtain fraudulent social security numbers.

Sam had made some brazen miscalculations during his first encounter with a union organizing campaign, prohibiting union fliers, blatantly eavesdropping, and firing a few vocal union supporters. This time around, he’d quash this nonsense without getting charged with labor violations. Step one: implement an English-only policy throughout the plant at all times. It would help stifle some of this union chatter — Spanish chatter that he couldn’t comprehend. Besides, he could justify the rule based on safety reasons. Step two: demand that employees present their work authorization documents. In fact, he would insist on three different documents as proof. He didn’t fret about those I-9 forms in the past, but “the law’s the law,” he told himself proudly. And he wasn’t going to do them a favor and look the other way if this is the thanks he gets.

A labor and employment analyst’s response:

While Sam’s strategy could help thwart a union drive, for now, it won’t help Acme evade liability for violations of the National Labor Relations Act. The NLRA protects all employees regardless of immigration status. And the fact that Sam did nothing about potential immigration violations, and indeed was complicit in the hiring of possibly undocumented workers, until the union showed up makes it clear that the organizing drive was the sole reason for Sam’s sudden interest in immigration compliance. As such, he violated the Act by interfering with the union drive and discriminating against the workers simply because of their NLRA-protected activities. Sam also interfered with the employees’ rights, and further discriminated against them, by imposing an English-only work rule solely only in response to the union drive.

Sam’s hard-line approach probably violates federal anti-discrimination law, too. Restricting employees’ use of a language other than English may amount to unlawful discrimination based on national origin, especially if such a policy is enacted for a discriminatory reason. Employers may impose English-only policies if justified by business necessity, and Sam might be able to make the case that, on the plant floor, a common language is necessary for safety or productivity purposes. However, blanket restrictions on speaking a foreign language anywhere and anytime, such as during breaks and lunch hours or in the employee locker room, are not justified. Sam would have a hard time showing that it’s essential to Acme’s operations to prevent employees from speaking their native language at all times.

Sam’s presumption that his new foreign-born employees are all undocumented workers also could amount to unlawful national origin discrimination if he were to demand documentation only from Spanish-speaking workers. He could also engage in unlawful bias based on citizenship status by assuming that all of his foreign-born workers are in the United States illegally. Not only would such discrimination violate Title VII of the Civil Rights Act of 1964, but bias based on citizenship or immigration status would run afoul of federal immigration law, as well. Finally, if Sam were to demand additional documents from employees beyond what is required under the Immigration Reform and Control Act, he would further violate the law.

If the National Labor Relations Board decides that Sam’s conduct was so coercive that it destroyed the “laboratory conditions” necessary to hold a fair union representation election at the Acme Falls plant, the agency could order that another election be held. Sam could take some solace in the fact, though, that any back pay Acme would have to pay to workers whom he unlawfully discharged would be limited if those workers were ineligible to work legally in the United States.

Lisa Milam-Perez, J.D., Labor and Employment Analyst
Wolters Kluwer Law and Business, (773) 866-3908, [email protected]

Reader responses:

It sounds like Sam is a one-man crew. Where are the HR people in all of this? Also, during a unionization campaign, he should not be going it alone. He and Acme should make use of people, either internally or externally, who specialize in such campaigns and how to deal with them. They are able to keep the management on the right (and legal) track when it comes to unionization efforts.

As for how the use of illegals could have been prevented, and could be prevented going forward, is to make use of the E-Verify system. If the employment service does not use it, drop them. Management can be charged and jailed for hiring illegals.

Phil Grimes

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