Collective Bargaining And Immigration

United States manufacturing industries have increasingly relied on the services of foreign-born employees. Though unions have historically opposed immigration, that trend has completely reversed since the turn of the century. Declining union membership and a new found perception...

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United States manufacturing industries have increasingly relied on the services of foreign-born employees. Though unions have historically opposed immigration, that trend has completely reversed since the turn of the century.  Declining union membership and a new found perception that immigrants are an important part of the American economy have driven unions to embrace the idea that incorporating immigrants into the unionized workforce can greatly strengthen the bargaining power of the union.  In turn, all union members benefit, whether U.S. workers or foreign nationals. 

With the increase in immigrant union membership,[1] American unionism and collective bargaining has undergone many fundamental changes from both the employee and the employer perspective.  The manufacturing industry in particular is no stranger to the operational and procedural complexities of a Collective Bargaining Agreement (hereinafter, “CBA”), and the challenges in negotiating CBA terms that ensure a productive and cooperative future for both parties.  For employers that also engage the services of foreign-national employees, it is increasingly important to understand the elements of a CBA that have the most direct impact on the immigrant workforce and each employee’s ongoing immigration status.  Though it would be impossible in one article to cover every scenario in which CBAs and immigration intersect, this article will address some of the most common provisions of a CBA that directly impact a company’s ability to retain foreign national employees in compliance with the limitations of both the employee’s immigration status and the terms of the CBA. 

The Most Common Provisions of a CBA that Have a Direct Impact on Immigration

Any collective bargaining that involves a workforce that is at least partially comprised of foreign-born employees should consider the effects of each of these provisions:

Wages and Benefits. Perhaps the most obvious section of any CBA that can directly impact foreign national employees are wage and benefits provisions.  As a general rule, an employer must pay foreign national employees on the same basis as United States workers, and must offer the same benefits to foreign national employees as are offered to United States workers.  The terms of the CBA will document the wages and benefits offered to all employees covered by the union contract.  The CBA will also apply to foreign national employees..  

Blanket wage increases in a CBA will directly alter what the Department of Labor (“DOL”) and the United States Citizenship and Immigration Services (“USCIS”) refer to as “actual wages.”  Actual wages arede the wages that a company actually pays to similarly employed employees – those working in similar occupations in the same geographic area.  Actual wages are distinguished from “prevailing wages” which are determined by the DOL to be the minimum acceptable wages for similar occupations in the same geographic area.  Companies that hire foreign national workers under certain visa categories, namely H-1B and E-3 visas, are requir to pay these employees at least of the two wages--either the actual wage or the prevailing wage--for the occupation. 

If a CBA sets the actual wage at a level that is higher than the prevailing wage, the employer must pay these immigrant workers at least the actual wage for the duration of their employment.  Refusal to do so could expose the company to liability for back wages.  This rule is especially important as it applies to H-1B and E-3 visa holders.  The employer must pay H-1B and E-3 employees at least the prevailing wage, regardless of the fact that it may be higher than the actual wage set in the CBA.

Hours and Working Conditions. As with wages and benefits, employers must provide working conditions to foreign national employees (including hours, shifts, vacations, and seniority-based benefits) that do not adversely affect similarly employed United States citizen and permanent resident employees.  With respect to hours, certain visas and most green card (“permanent resident”) sponsorship processes require foreign national employees to maintain full-time employment. Any CBA provisions that drive down hours for foreign national employees should always be cross-referenced against the individual immigration status of each immigrant employee to ensure that the provisions do not negatively impact the employee’s ability to maintain lawful status and employment authorization in the United States. 

Job Titles. If a CBA defines employee job titles, then the duties, responsibilities, wages, and benefits associated with those job titles will impact the employer’s sponsorship of a foreign national employee for a visa or permanent resident status. The employer may be bound to employ the foreign national employee under the position’s explicit terms outlined in the CBA, potentially preventing the foreign national from qualifying for certain temporary work visa categories or higher green card preference categories. To do otherwise could violate the terms of the CBA.

Workforce Reductions.  CBA terms that result in a reduction in workforce can temporarily limit a company’s ability to sponsor foreign national employees for permanent resident status in the United States.  Employers who are required to obtain a labor certification from the DOL before sponsoring an employee for a green card will be temporarily unable to do so if any United States workers working in a similar occupation were laid off in the same geographic area within 6 months or longer. 

Notice to Union Representative:  In the case of temporary work visas, such as the H-1B and E-3 visas, the employer is also required to notify the union representative that such a visa application has been made.  Furthermore, an employer may not file such a visa application if there is a strike, lockout, or work stoppage.

In the event of a strike or lockout, an employer’s ability to continue sponsoring foreign national employees for work visas in the United States may be temporarily restricted.  USCIS will halt processing, or deny visa petitions filed by an employer, if the employment of foreign workers in the job and at the location in question would adversely affect the wages and working conditions of U.S. workers who are currently on strike. 

Conclusion

The intersection between collective bargaining agreements and immigration law is far more involved than can be outlined in one article.  The list above should be viewed as a brief reference guide for employers to consider when filing work visa applications on behalf of foreign workers to be employed under a CBA.  Knowing the immigration-related elements of a CBA and engaging qualified immigration and labor counsel in the collective bargaining process is critical to ensuring the company’s ability to retain foreign national employees in compliance with the terms of their immigration status and the terms of the CBA.

Frida P. Glucoft is a partner in the Los Angeles office of Mitchell Silberberg & Knupp LLP, where she is co-chair of the firm’s immigration practice. For more information, please email her at fpg@msk.com.

John E. Exner IV is an associate in the Los Angeles office of Mitchell Silberberg & Knupp LLP, where he is a member of the firm’s immigration practice. For more information, please email him at jee@msk.com.


[1] According to the May 2004 Migration Policy Institute Fact Sheet “Immigrant Union Members:  Numbers and Trends,” foreign-born union membership increased by 24 percent between 1996 and 2003, while native-born union membership declined by 6 percent.

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