The National Labor Relations Board (NLRB) is an independent​ federal agency with the power to safeguard employees’ rights to organize, engage with others to seek better conditions, decide whether to have union representation, and prosecutes those who violate those rights by committing unfair labor practices as defined by the National Labor Relations Act. The NLRB’s General Counsel Jennifer A. Abruzzo is charged with prosecuting employers who violate those rights, and has taken affirmative steps to provide immigration protection to undocumented and other vulnerable noncitizens, as set forth below, including creating a process for workers and their representatives request a Statement of Support from their local Regional Director. Relevant documents include:

• i. General Counsel Abruzzo issued Memo GC 22-01, dated November 8, 2021, entitled Ensuring Rights and Remedies for Immigrant Workers Under the NLRA, can be accessed here. It refers to DHS Secretary Alejandro Policy Statement of Oct. 12, 2021, and based on that “upon request by a charging party or witness, the NLRB will seek immigration relief, including deferred action, continued presence, U or T status, a stay of removal, or other relief as available and appropriate, to protect these workers in the exercise of their statutory rights. It also states that individuals or their representatives can indicate the need for such relief to the NLRB Regional Office involved or to the NLRB’s Immigration Team. It also states that the NLRB will continue to certify requests for U and T petitions for individuals who have been helpful to NLRB investigation or litigation and have suffered harm as a victim of a qualifying crime.

• ii. Asst. General Counsel Sullivan issued Operations Management(OM) Memo 22-09, dated May 2, 2022, entitled Ensuring Safe and Dignified Access for Immigrant Workers to NLRB Processes. This can be accessed here. It provides a fact sheet for immigrant witnesses in Spanish and English, and explains that NLRB agents will explain that their immigration status is not relevant to its investigation, that they will not ask workers about their status, and that if the charged party engages in conduct relating to immigration or work authorization status which threatens to undermine the Board’s work, the NLRB’s Immigration Team must be notified.

• iii. Gen. Counsel Abruzzo issued Memo GC 21-07 on Sept. 15, 2021, entitled Full Remedies in Settlement Agreements, which can be accessed at this link. This provides that it is crucial in cases involving immigrant workers that the NLRB seek settlement agreements with all possible remedies to ensure that these employees are provided the fullest relief. For example, if the employer’s unfair labor practice causes the loss of an employee’s work authorization, that they seek at the very least a provision requiring the employer to sponsor the affected employee on a non-immigrant visa, and reimburse the employee for legal fees, application fees, and travel costs that the affected employee may incur in seeking to regain a lost work authorization. Additionally, where an employer misused the E-Verify system in an unlawfully discriminatory manner, the Region should require a DOJ training of all its managers and supervisors.

• iv. NLRB’s Guidance on Immigrant Worker Rights, explaining that it protects the rights of employees regardless of immigration status can be accessed here.

  • 1. It states that where there is an ongoing NLRB investigation or enforcement action at a worksite, and the immigrant worker or their representatives tells the NLRB agent that immigration relief is necessary at that worksite to protect workers who are, or may be willing to cooperate with the NLRB’s investigation or enforcement action, but who may fear for doing so, they can make a request that the NLRB issue a Statement of Interest, which employees can use in requesting deferred action from the DHS. Requests to the NLRB for a Statement of Interest for a particular worksite should be directed to any of the following: (1) NLRB agent investigating the case; (2) the Immigration Coordinator in the Region; (3) the Regional Director; or (4) the NLRB Immigration Team in Washington DC (Immigration.Team@nlrb.gov), including the NLRB case number, worksite location, and the employer’s name.

  • 2. It further states that the NLRB will also consider completing U visa and T visa certifications in appropriate cases, and these should be directed to the NLRB Immigration Team (Immigration.Team@nlrb.gov)

• v. NLRB Operations Management (OM) Memo 11-62, dated June 7, 2011, by Associate General Counsel Richard Siegel, entitled “Updated Procedures in Addressing Immigration Status Issues that Arise During NLRB Proceedings,” can be accessed here. It notes that where immigration status is one of particular significance, the NLRB may ask DHS’s subagencies (USCIS, ICE, CBP) for U or T visa remedies, or “favorably exercise discretion in order to assist the NLRB in the enforcement of the NLRA”, deferring immigration actions during the pendency of the NLRB proceeding, and/or releasing individuals from custody or providing access to witnesses in custody. This can be accessed here.

• vi. NLRB General Counsel Memo GC 02-06, entitled Procedures and Remedies for Discriminates Who May be Undocumented Aliens after Hoffman Plastic Compounds, Inc.

• vii. NLRB Notice entitled: Important Information About NLRB Investigations for Immigrant Workers (English) can be accessed here. The Spanish version can be accessed here.

• viii. NLRB Know Your Workplace Rights: Immigrant Workers, which states that: (1) immigrants are protected under the NLRA regardless of immigrant status, (2) that the NLRB will not ask them about their immigration status, (3) that the NLRB will not share information with the DHS or ICE, unless they ask it to as part of a request for relief, and (4) that if they tell the NLRB there is a need for protection at a worksite, it may be able to provide documentation to assist them in applying for deferred action or other relief. The card in English can be accessed here.

• ix. NLRB maintains a Spanish-language website, which can be accessed here.

• x. NLRB also has foreign language: (1) NLRB informational pamphlets in Spanish, Chinese, Haitian Creole, Korean, Russian, Somali, and Vietnamese; (2) one page Immigrant Employee Rights in Spanish, Arabic, Haitian Creole, Korean, Polish, Russian, Tagalog, and Vietnamese ; and (3) EEOC Fact Sheet: Retaliation Based on Exercise of Workplace Rights Is Unlawful in Arabic, Haitian Creole, French, Hindi, Hmong, Korean, Chinese, Portuguese, Punjab, Russian, Tagalog, Urdu, and Vietnamese. These publications can be accessed here.