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Employer Ordered By the Board to Break the Law

In a recent Arizona District Court case, the National Labor Relations Board’s (“Board”) Regional Director tried to require an employer to forego using the E-verify system to verify employment eligibility of several employees, in violation of Arizona law.  As a result, the Board was ordered by the Court to pay over $55,000 in attorneys’ fees to the employer.

In this case, the employer had recently acquired a new company that was in the midst of a union organizing campaign.  The employer understood from the federal government it could treat all employees as new hires and use E-verify to ensure each employee was eligible to work in the United States.  E-verify is an Internet-based system created by the government that allows employers to more easily determine employees’ employment eligibility.  Some states, including Arizona, make use of this system mandatory.  When the employer in this case used E-verify to determine the employment eligibility of his employees, four employees were fired as a result.  The Board alleged these terminations were unlawful and sought unconditional reinstatement of these employees under Section 10(j) of the National Labor Relations Act.

Interestingly, the Board prevailed on its demand that these individuals be reinstated.  However, the Court found that an unconditional reinstatement of the employees, meaning regardless of their successfully passing E-verify, was not lawful under Arizona law.

The employer requested attorneys’ fees under the Equal Access to Justice Act, a federal law that allows prevailing parties to recover attorneys’ fees from the government when they are forced to defend against unjustified government action.  The Court was especially influenced by the fact that the employer had already offered to reinstate these employees, subject to their passing E-verify, which had been rejected by the Regional Director.  Therefore, the Court ordered the Board to pay the attorneys’ fees incurred based on the reinstatement issue according to certain statutory rates.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.