I-9 Compliance is a Mandatory Subject of Bargaining

Did you know that I-9 compliance is a mandatory subject of bargaining?

The end of the year is a time for HR audits. I-9 forms are inevitably audited because compliance can sometimes be tricky and penalties for noncompliance are steep.

One employer realized that because of noncompliance it needed to obtain new I-9 forms from most of its workforce. Naturally, it notified the workforce they needed to submit new I-9s. This is normal.

The union representing the employees complained that it did not receive prior notice of the need to submit new I-9 forms and demanded to bargain over it. The employer said it didn’t need to bargain over collecting new I-9s because the employer was just trying to follow federal law.

First, the ALJ said it was a mandatory subject of bargaining because the employer had discretion over how to comply with the Immigration Reform and Control Act (which covers I-9 forms). For example, the employer had discretion on “the amount of time it would give an employee to obtain and present documents that establish the employee’s identity.”

The NLRB also held that the requirement to submit new I-9 forms was a mandatory subject of bargaining because it affects terms and conditions of employment. Per the NLRB, “employees who (for whatever reason) have difficulty completing the I-9 forms risk losing their jobs, among other potential consequences.”

To be clear – this ruling does not say employers must bargain over the decision to collect new I-9 forms in an effort to comply with the law. Rather, the employer must bargain over the impact (the effect) that the collection of those forms may have on employees.