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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.

Medical Marijuana Use Protected from Adverse Action

April 2, 2025
A recent court decision in Pennsylvania offers clarification that employers cannot take adverse action for marijuana use against individuals who possess medical marijuana cards, at least under Pennsylvania’s Medical Marijuana Act. In this decision, an individual received a conditional job offer for a non-safety sensitive position, contingent on a drug test. The individual disclosed his state-certified use of medical marijuana to treat anxiety, depression and ADHD, assuring the employer that it wouldn’t affect job performance or safety. After a positive test for marijuana, the employer rescinded the offer, citing safety concerns. The individual sued the employer under the Pennsylvania Medical Marijuana Act (“MMA”) and disability discrimination under the Pennsylvania Human Relations Act (“PHRA”). The Court allowed the individual’s claim under the MMA to proceed, potentially creating substantial precedent for tolerance of individual medical marijuana use in non-safety sensitive positions. The Court specifically noted that MMA protects individuals not just from discrimination based on card holder status, but also for adverse actions based solely on lawful medical marijuana use. The Court otherwise dismissed the individual’s claims under the PHRA because the PHRA does not require employers to accommodate medical marijuana use, even if it is prescribed for a legitimate medical condition. While a Pennsylvania decision, this decision potentially has rippling implications that will affect Massachusetts employers and employers in states where medical marijuana use is allowed under state law, which is allowed in some manner in 44 states. Employer Takeaways 1. Understand State-Specific Protections : Laws regarding medical marijuana use differ widely across states. In some areas, cardholder status is protected, while in others, it is not. Employers operating in multiple states must ensure their hiring and accommodation practices comply with the relevant laws in each state. 2. Base Safety Concerns on Job-Specific Evidence : General or speculative safety concerns are insufficient, particularly in states with strict employee protections. Safety risks cited should be specific, evidence-based, and directly related to the essential functions of the job. 3. Review Drug Testing and Accommodation Policies: Update your policies to reflect current state laws and clarify how your organization manages disclosures of medical marijuana use, especially during the hiring process . If you have any queries regarding drug testing or other workplace accommodations following this ruling, it is prudent to contact legal counsel. 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.

The Royal Law Firm Awarded Finalist of 2025 Best of The Valley Readers’ Poll

March 28, 2025
The Royal Law Firm was a Finalist for Best Law Firm in The Best of The Valley Readers' Poll for 2025, as published by the Valley Advocate! Thank you to everyone who voted for us, and to those of you who trust us to help you in times of need. Click here to check out all of the category winners and finalists.
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