Company Should Have Bargained with Union Before Using E-Verify

Companies whose employees are represented by a labor union are required to bargain with the union before changing most any term or condition of employment.

An Illinois food processing company should have bargained with the union representing its employees before enrolling in the federal government’s E-Verify program. E-Verify is a web-based system that allows participating employers to confirm that employees are authorized to work in the U.S. By enrolling in the program, an employer can verify the identity and employment eligibility of newly hired employees by electronically matching information they provide against records available to the Social Security Administration or Department of Homeland Security.

The National Labor Relations Board agreed that the company’s unilateral action violated its duty to bargain with the union. They disagreed, however, about the appropriate remedy. Obama-appointed Board Members Pearce and McFerran ordered the company to withdraw from E-Verify if the union requests such action. Dissenting Board Member (Trump-appointed) Emanuel said the company and the union had eventually negotiated a collective bargaining agreement that authorized the company to use E-Verify. Although “rescission and bargaining are typical remedies” for improper unilateral changes, “these are not appropriate remedies when the parties subsequently bargain over and come to an agreement regarding the subject of the unilateral change.”

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at