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National Labor Relations Board Decision on I-9 Forms Upheld

June 17, 2021
National Labor Relations Board (NLRB)

A panel of the National Labor Relations Board (NLRB) recently upheld a decision that employers must bargain with unions over the effects of a requirement that employees fill out new I-9 forms. 


In this case, the employer conducted an I-9 audit, and determined that it did not have proper I-9 forms for 95% of its workforce. The employer notified the employees that they needed to submit new I-9 forms and supporting documentation. When the union found out about this, it complained that it had not received prior notice about the requirement and demanded bargaining on the issue. The employer refused, and argued that it did not have to bargain with the union over its decision to resolve I-9 compliance issues. Subsequently, the union filed an unfair labor practice charge under the National Labor Relations Act (NLRA).


The NLRB found that requiring employees to submit a new I-9 form is a subject of mandatory bargaining because the requirement affects the terms and conditions of employment, since employees who have difficulty completing the form risk losing their jobs. Although employers must comply with federal immigration law and secure a valid I-9 for each employee, they have discretion over how to implement compliance, such as deciding the amount of time the employer would give an employee to present supporting documentation. Therefore, employers must bargain over the impact complying with the law could have on employees’ terms and conditions of employment.


This case demonstrates how even when implementing federal or state compliance, employers must consider interactions with labor laws and stay attentive to their NLRA obligations. If you need to make an adjustment to an employment practice, even if it is for state or federal compliance reasons, be sure to check with us first.


If you have any questions about this topic or any other labor and employment law matters, please feel free to contact the attorneys at The Royal Law Firm at 413-586-2288.

Massachusetts’ Superior Court Judge Rules Recording in Workplace Admissible

February 19, 2025
The Massachusetts Superior Court found that Massachusetts’ wiretap statue does not bar employers from using allegedly illegally obtained recordings in civil proceedings. In a recent case, an employee claimed she was forced to resign. Plaintiff’s coworker recorded an argument between the Plaintiff and her supervisor without her consent and shared it with supervisors. The employee then sued for discrimination and retaliation, along with two counts for violation of the wiretap statute. Massachusetts is a two-party consent state but, in this case, it was found that the consent of only one party was needed because nothing in the Wiretap Statute bars the use of an allegedly illegally obtained communication in a civil proceeding. The court found that the provisions about the use of illegally obtained communications in evidence are limited to criminal trials. However, depending on the court, results may differ, as this recording was central to proving and/or disproving the Plaintiff’s claim, and as such, the recording was indispensable as a piece of evidence. Issues with unauthorized recordings have been arising all the time in civil proceedings because recording devices are everywhere, whether they be a cell phone, laptop or other recording device. This ruling is good for employers, as if there is an otherwise inadmissible recording that is made that disproves an employee’s claims, it can be admissible as evidence if meets the same scenario above. However, employers must be careful to use these recordings as they may be inadmissible and may not show the same thing that the employer believes in the court’s eyes. This being said, it is prudent to consult an attorney before utilizing a recording for any employment action or in legal action to avoid unwanted consequences. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

After the DEI Executive Order

February 14, 2025
What Are the Compliance Requirements for Private Employers?
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