212.627.8100On May 2, 2022, National Labor Relations Board General Counsel Jennifer Abruzzo released new guidance to ensure immigrant workers are protected under the National Labor Relations Act (NLRA) to freely exercise their rights to organize and take action to improve their working conditions.
The guidance instructs regional NLRB offices to distribute information and advise witnesses giving testimony on alleged unfair labor practices that immigration status is not relevant to whether there was a violation. The regional offices should further advise worker witnesses that their status is entitled to protection from employer retaliation. NLRB staff may not ask about a worker’s immigration status and will not require witnesses to share coworkers’ immigration status.
Under the NLRA, workers have the right to organize a union and take action to improve their working conditions free from intimidation. The NLRA protects all covered workers regardless of their immigration status, including undocumented workers. Therefore, it is illegal for an employer to use an employee’s immigration status against them. Employers cannot threaten to call U.S. Immigration and Customs Enforcement (ICE) to report employees and cannot demand workers produce new immigration papers because workers attempt to join a union.
Previously, in November 2021, the NLRB released a memo outlining goals and approaches to ensure immigrant workers have safe and dignified access to the Board’s resources and protections. Amongst these protections, the NLRB can seek immigration relief on behalf of immigrant workers, including deferred action, continued presence, and a stay of removal, as well as order remedies, including full backpay and employment reinstatement. The May 2022 guidance is the most recent NLRB initiative towards achieving the goals of protecting immigrant workers.
For more general information on immigrant employee rights under the NLRA and reporting employer abuses, see the NLRB’s one-pager.