The NLRA 'Rock' and the IRCA 'Hard Place': The NLRB's Entry into Immigration Issues
75 Pages Posted: 29 Sep 2013 Last revised: 20 Dec 2014
Date Written: September 27, 2013
Researchers estimate that as of March 2010, there were approximately 8 million undocumented workers employed in the United States. Existing immigration law makes it unlawful to knowingly, or with constructive knowledge, hire such workers. At the same time, the National Labor Relations Act (“NLRA”) recognizes that undocumented workers have the same rights as documented workers to engage in union and other protected activities set forth in the NLRA. Unfortunately neither the NLRA nor immigration law, nor the courts and administrative agencies that have interpreted them, have consistently provided clear guidance to comply with both. Absent immigration reform, both the National Labor Relations Board (the “NLRB” or the “Board”) and employers are increasingly stuck between a rock of the NRLA and hard place of the IRCA in navigating the unbalanced aims of the two laws.
This paper explores the intersection between immigration laws and the NLRA, including both laws’ focus on employers’ rights and obligations. It includes a brief summary of the evolution of employment-related immigration law in Part I; a description of the balance, and sometimes conflict, that has existed between immigration law and the NLRA as interpreted by court and administrative decisions in Part II; some of the practical problems that the lack of immigration reform causes the Board and employers when they address situations where both areas of law are implicated along with some practical guidance for addressing those problems in Part III; and a brief summary of the proposed federal immigration legislation that many are hopeful will resolve these conflicts and leave employers and employees with clearer guidance of their rights and obligations under both areas of law in Part IV.
Keywords: National Labor Relations Board, Immigration Reform, Immigration Reform and Control Act, Immigration, labor law, employment rights, undocumented worker, immigrants, workers rights
JEL Classification: K31, K23, K30, K20, K39
Suggested Citation: Suggested Citation