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Sample Contract Language

Sample Contract Language [From United Food & Commercial Workers International Union, adapted from material provided by the United Electrical Workers Union] In order to strengthen the rights of bargaining unit members and to assist the employer in dealing with Immigration and Naturalization Service (INS) inquiries, the Union and the Employer may agree to contract language which: 1. Requires the Employer to notify the union as soon as possible of an INS audit or the presence of INS agents at the work site and to provide the Union with names and addresses of any employees arrested. 2. Requires the Employer to refuse admission to INS agents without a valid warrant issued by a federal judge or magistrate. 3. Requires the Employer not to reveal employees' names, addresses or immigration status unless required by law. 4. Requires that the Employer grant seven (7) days absence without pay for INS proceedings. 5. Allows employees to change their names and social security numbers without discipline or detriment to their seniority or wage or benefit levels. 6. Requires the Employer to pay for a translation of the collective bargaining contract into relevant languages, with the parties to jointly agree on a translator. 7. Requires disciplinary notices (and other employment related documents) to be in the language in which the employee is fluent, and for disciplinary meetings with employees to be conducted in their language, or with a qualified interpreter provided. 8. Bars the company from requiring proof of immigration status other than that required by 8 USC 搂 1324A(B) and bars the company from retaining copies of documents presented for I-9 purposes. [ Employers are not required to retain copies; doing so exposes both the employer and employee if the documents turn out to be fraudulent.] 9. Provides that in the event of a sale of the business or its assets, the company shall transfer the I-9 forms of its employees to the new employer. [This relieves the employees retained by the successor employer of the need to do new I-9 forms.] 10. Bars discrimination based on national origin, citizenship, immigration status, or accent. 11. [To address company concerns] A hold harmless clause providing that the Employer is not required to violate the law, abridge its legal responsibilities, or circumvent any ordinances or laws. Sample No. 1: Non -Discrimination The Company shall not discipline, discharge, or in any other form discriminate against any employee because of his/her national original or immigration status, or because immigration hearings and/or deportation hearings are initiated or are pending. Such employees, if "grandfathered" pursuant to Immigration Reform and Control Act of 1986 (IRCA) or possessing work authorization or able to provide documents sufficient to complete Form I-9, shall retain employment until such date as their situation requires them to leave the country. Sample No. 2: Protection of Rights The Company shall: a. Promptly notify1 the shop steward and Union if the company is contacted by the Immigration and Naturalization Service (INS) for any purpose or if a search and/or arrest warrant, administrative warrant, subpoena, or other request for documents is presented in order that the Union can take steps to protect the rights of its members. b. Refuse admittance to any agents of INS who do not possess a valid warrant signed by a federal judge or magistrate. c. Permit inspection of I-9 forms by INS or DOL only after a minimum of three days written notice.2 The Company shall provide no documents other than the I-9 1 You should specify the methods to be used in providing notice. For example, oral notice to the steward and notice by telephone to the Union at [phone number]. If INS has contacted the employer to inspect the I-9 forms, the union should promptly inform the employees that they should provide the employer with any changes of their names (such as due to marriage), Social Security numbers or alien numbers, or extensions of their work authorization. Since INS will run the names and numbers on government computers to identify fraud, outdated or incorrect information will mean that the employees will later show up on an INS warning list to the employer. The union should take care not to advise employees to flee, conceal themselves, or provide false information to the employer or government agents. If the employees have questions about their legal status, they should be referred to a qualified immigration lawyer or community group. 2 INS regulations provide that an employer shall be provided with at least three days notice prior to an inspection of I-9 forms. 8 CFR 搂 274a2(b)(2)(B) (ii). INS will often agree to an extension of time so that the forms may be better organized and copied. Inspection of the forms may be arranged at the INS office. This is preferred in order to avoid unnecessary disruption of the workplace; it is also more convenient for INS. forms to INS for inspection in the absence of a valid INS administrative subpoena, or a search warrant or subpoena signed by a federal judge or magistrate. d. Where a warrant specifically names certain individuals or the INS presents a warrant or subpoena which requires the production of I-9 forms, the inspection shall be permitted and individuals shall be called into ( specify location away from production area and personnel records). e. Where INS notifies the Company that certain employees do not appear to be authorized for continued employment, the Company will provide the employees, as required by law, with a reasonable opportunity of not less than two weeks to present other documents as listed on Form I-9 to establish their employment authorization.3 No change in the employment status of the employee may be made without compliance with this requirement. Sample No. 3: Confidentiality The Company agrees not to reveal to the INS the names, addresses or immigration status of any employees, except pursuant to a valid warrant or subpoena signed by a federal judge, magistrate, or immigration officer designated by the INS Commissioner, or a valid INS Notice of Inspection of I-9 Forms. INS cannot obtain other employer documents merely by asking for them, or including them with the Notice of Inspection of I-9 Forms. Employer records other than I-9 forms may be sought by INS by presenting a validly issued Administrative Subpoena (I-138) pursuant to 8 CFR 搂 287.4. An Administrative Subpoena is not self-enforcing. If the employer will not comply, INS must go to a federal court judge to obtain an order to comply. The employer may challenge the subpoena in federal court before compliance, Donovan v. Lone Star 464 U.S. 408 (1984). INS requests for other employer documents are often broadly drafted, they will often settle for a list of employees showing their dates of employment and social security numbers and/or copies of the previous three years' quarterly state unemployment tax reports. This allows them to check to see if there are I-9 forms for all employees. 3 INS records are notoriously inaccurate and take considerable time and effort to correct. Additionally, some employees will have obtained legal status or changed their names since they completed the I-9 forms. Therefore, when INS notifies an employer that some of its employees appear to lack valid work authorization, the employer, prior to suspending or terminating the employees, should give them a "reasonable opportunity" to present other documentation to establish that they are work authorized. Mt. High Knittung v. Reno, 51 F.3d215 (9th Cir. 1995) (noting that two weeks was approved as a "reasonable opportunity" by the court in Mester Mfg. V. INS, 879 F.2d561, 567 (9th Cir. 1989)). Terminating employees prior to such a "reasonable opportunity" is at the employer's peril. Mt. High Knittung, supra. Sample No. 4: Excused Absences The Company agrees that the absence of any employee who has been away due to INS proceedings and who has returned to work within fourteen (14) days of the start of that absence, or has requested an extension of time to report within that same fourteen (14) day period, shall be treated as an excused absence. Sample No. 5: Record Change Any employee may notify the Company of a change of name and/or new social security number. The Company shall modify the employee's name and other information and such employee shall retain his/her seniority and all other benefits. Sample No. 6: Funeral Leave Employees who have to travel to distant locations because of the death of immediate family members will receive an excused absence of reasonable time without pay [in addition to paid funeral leave provided in Section (#).] Sample No. 7: Language It is agreed that the collective bargaining agreement shall be printed in both English and (Spanish, Vietnamese, etc.). Where there is a discrepancy in translation regarding contract language or interpretations, the English language contract shall prevail. [Responsibility for translation and costs needs to be addressed. Translations should be done by a qualified translator with the company bearing the cost of translation and printing.] Sample No. 8: Discipline/Discharge Any employee who is disciplined or discharged must be provided with notice in the language in which he/she is most fluent and any meetings which may lead to or concern discipline or discharge must be conducted in the language in which the employee is most fluent and in the presence of a Union representative. Sample No. 9: Verification of Immigration Status The Company shall not require or demand proof of immigration status, except as may be required by 8 USC 搂 1324A(B) and listed on the back of the I-9 form. Sample No. 10: Reinstatement After Temporary Separation, Successors and Assigns, etc. Excellent language in the immigration regulations defines employment after certain temporary absences as "continuing employment." After such an absence, an employee does not lose his/her "grandfathered" status, and an employer is not required to reverify employment. The definition at 8CFR 搂 274a.2(b)(1)(viii) provides: "Continuing employment" includes but is not limited to situations where: a. The employee takes approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer; b. The employee is promoted, demoted, or gets a pay raise; c. The employee is laid off for lack of work; d. The employee is on strike or in a labor dispute; e. The employee is reinstated for disciplinary suspension or wrongful termination, found unjustified by any court, arbitrator, or administrative body, or otherwise resolved through reinstatement settlement; f. The employee transfers from one distinct unit of an employer to another distinct unit of the same employer; the employer may transfer the employee's Form I-9 to the receiving unit; or g. The employee continues his or her employment with a related successor, or reorganized employer, provided that the employer obtains and maintains (sic) from the previous records and Forms I-9 where applicable. For this purpose, a related successor, or reorganized employer includes: 1. The same employer at another location; 2. An employer who continues to employ some or all of a previous employer's work force in cases involving a corporate reorganization, merger, or sale of stock or assets; or 3. An employer who continues to employ some or all of another employer's work force where both employers belong to the same multi-employer association and employees continue to work in the same bargaining unit under the same collective bargaining agreement. (Under the Illegal Immigration Reform and Immigration Responsibility Act of 1996, this provision would be limited to the first three years of employment with the second employer. Regulations have not yet been enacted to implement this statutory change.) You should consider incorporating relevant sections of this definition in appropriate paces in the contract in order to protect workers from losing grandfathered status, from being subjected to repeated verifications, and from losing recall rights, accrual of seniority or other benefits during temporary absences. It is also important that successor and assigns clauses should include language which will ensure that workers employed with the new company are not treated as new hires subject to document inspection. Note that the regulations quoted above also provide extremely broad definitions of "continuing employment" in the context of a change in ownership, reorganization, etc., and that "successor employer" is defined to include "some or all" of the previous work force. Sample No. 11 Hold Harmless Clause Because of the somewhat unsettled state of the law, one way of dealing with company concerns is to include a "hold harmless" clause, such as the following: It is understood that Article (##) shall not require the employer to violate the law, abridge its legal responsibilities or circumvent any ordinances or laws. [The difficulty with this sort of provision is that it may simply postpone the dispute with the employer over what is required by law. ] NOTE: Whether such rights should be secured in the contract itself, in terms of understanding or informal agreements with the employer, should be considered. While contract language undoubtedly provides the clearest protection, local conditions, employer concerns and relations with the employer may influence what is appropriate in a particular situation. Similarly, whether or not to propose language where specific problems may be foreseen but have not yet occurred is a strategic question. While there are no simple answers, it may be useful to distinguish between types of problems. For example, a company's refusal to recognize seniority when a work changes social security numbers is more easily addressed after the fact through the grievance procedure than is cooperation with INS during a raid. Some employers fear INS raids because of their disruptive effect on business and the possibility under the new law of civil and criminal penalties. Such employers may welcome language which prevents them from admitting INS agents without a warrant from a court or form providing I-9 forms or other records in the absence of a subpoena, and which requires that notification be provided to the union, where they perceive that this will give them a stronger basis for acting in their own self interest. Finally, even if you are ultimately unsuccessful in obtaining the language you are seeking, the educational value of the discussion may be critical. For example, a proposal reading "verification" may lead to a discussion which emphasizes that an employer must accept all documents listed in the INS regulations that appear genuine, and that there is no requirement that the employer conduct an investigation or maintain copies of the documents presented by the workers. Similarly, a proposal regarding "protection of rights" may be used to educate the employer about the right to require a warrant or subpoena and the fact that even under the INS regulations, the agency cannot simply appear and demand to inspect records, but must give three days' notice. There are a number of strong arguments that can be used to convince an employer not to consent to INS entry: 1. The immigration act establishes a system of civil and criminal penalties which may be imposed on an employer who knowingly hires or continues to employ workers after November 6, 1986 who are not legally present and authorized to work; who fails to verify that such workers possess proper documentation; or who fails to maintain signed verification forms for the specified period of time. If the INS were contacted, there is no reason to believe that it would investigate not only the status of workers but compliance by employers as well. Thus, a company which calls in or cooperates with the INS may be placing itself in jeopardy of being fined or subject to civil or criminal sanctions. 2. Refusal to consent does not mean that the INS will obtain a warrant. In fact, in the absence of admissions by company managers about hiring practices or company records, the INS may not have sufficient evidence to obtain a warrant. 3. Cooperation does not guarantee protection from future raids; in fact, it may encourage re-entry by the agency in the future based on information which has been obtained. 4. The company has not legal obligation to grant access; the purpose of the Fourth Amendment requirement for a warrant or subpoena is precisely to prevent abuses by government officials; 5. Cooperation with the INS may result in the arrest of many workers who are lawfully present in the U.S. Reliance on the INS computer for a determination of who is employable is not only unfair but may be highly discriminatory. The computer will not reflect information on citizens born in the U.S., nor in most instances include derivative4 citizens or persons present under color of law.5 Moreover, the list will not be current, will be inaccurate, and will not include workers who are eligible for discretionary relief. In other words, while the INS records may accurately reflect that a worker's status is legal, the absence of such a record does not necessarily mean the reverse is true. 4 Derivate citizens, such as the children of naturalized citizens or foreign-born children of U.S. citizen parents, are U.S. citizens by virtue of their relationship with a U.S. citizen. 5 "Under color of law" generally refers to people who are legally present in the U.S. while they wait for a final determination by the INS or a court. SAMPLE LABOR CONTRACT LANGUAGE (From the Immigration Workshop at Service Employees International Union's Civil & Human Rights Conference 9/24/2000) A. In order to strengthen the rights of the undocumented worker, as well as giving the Employer help in dealing with INS inquiries, the Union and the Employer may agree to contract language, which provides as follows: 1. The Employer shall not admit any agent of the INS to its premises or permit the agent to interrogate, search or seize any employee unless the agent has a valid search or arrest warrant signed by a federal judge or magistrate authorizing the foregoing. Should an INS agent demand any of the foregoing, the Employer shall immediately notify the Union by telephone call to the Union's office. The foregoing shall not require the Employer to deny the INS or Department of Labor access to I-9 forms after three days notice to the Employer. 2. The Employer shall not reveal confidential information concerning employees to the INS or its agents, except as required by law. Confidential information includes employees' names, addresses, social security numbers, or immigration status. 3. The Employer shall grant seven days absence without pay for INS proceedings. 4. The Employer shall comply with requests of workers to change names and social security numbers in the Employer's record, without prejudice to their seniority or other rights under this agreement. 5. The Employer shall provide, at its expense, a translation of the collective bargaining contract into the __________language. The parties shall jointly agree on an appropriate translator, and shall agree on the translation. 6. The Employer shall insure that all disciplinary notices are in the language in which the employee is fluent. All disciplinary meetings with employees will be conducted in their first language, or with a translator provided by the Employer. The employee and/or Union shall be allowed to provide their own translator at their expense. The Employer shall release a coworker to serve in this capacity at the request of the employee or Union. 7. The Employer shall not request information of documents from employees or applicants for employment as to their work authorization or identity, except as required by law. No worker hired before November 6, 1986, shall be discharged due to his/her immigration status, nor shall any employee be asked to show authorization to work if the employee continues his employment after a temporary absence as defined in immigration law and regulations. The Employer shall not retain its file copies of the identity and work authorization documents presented by the employee. 8. Nothing herein shall require the Employer to violate the law, abridge its legal responsibilities, or circumvent any ordinances or laws. 9. In the event of a sale of the business or its assets or other business reorganization, which transfers the employees to a different entity, the Employer shall transfer the I-9 forms of its employees to the new Employer. 10. The Employer shall not, except as required by law, discriminate against an employee or applicant for employment based on national origin, citizenship, immigration status, or accent. 11. The Employer shall not participate in any computer verification of immigration or work authorization status, except as required by law. 12. Where the Employer receives written notice from INS concerning the employment authorization status of an employee, the Employer shall promptly fax said notice to the Union. The Employer shall provide a minimum of 30 days following written notice to each such employee to correct his/her records before taking any action against the employee. [Sample Contract Language from Hotel Employees & Restaurant Employees (HERE), Local 2 in San Francisco, CA] SECTION 10. CHANGE OF STATUS/IMMIGRATION (a) No employee covered by this Agreement shall suffer any loss of seniority, compensation, or benefits due to any changes in the employee's name or social security number. It is understood that falsification by an employee of work history and/or background (except for names and social security numbers) can be cause for discipline which may include discharge. (b) In the event that an employee who has completed his or her probationary period has a problem with his or her right to work in the United States, or upon notification by the INS that an immigration audit or an investigation is being initiated, or when the Hotel receives No Match letter(s) from Social Security, the Employer shall immediately notify the Union in writing, and upon the Union's request agrees to meet with the Union to discuss the nature of the problem or investigation to see if a resolution can be reached. Whenever possible, this meeting shall take place before any action by the Employer is taken. (c) The Employer will furnish to any employee terminated because he or she is not authorized to work in the United States of America, a personalized letter stating the employee's rights and obligations under this section of the Agreement. (d) Upon request, employees shall be released for up to five (5) unpaid working days during the term of the Agreement in order to attend to INS proceedings and any related matters for the employee only. The Employer may request verification of such leave. No employee employed continuously since November 6, 1986 (or before, or as amended by Congress) shall be required to document immigration status. In the event of a sale of the hotel, the current management company will share joint custody of the I-9s with the new management company for a period of three (3) years from the date of the sale. After the three (3) years, the new management company will retain the original I-9s. In the event that an employee is not authorized to work in the United States following his or her probationary or introductory period, and his or her employment is terminated for this reason, the Employer agrees to immediately reinstate the employee to his or her former position, without loss of prior seniority (i.e., seniority, vacation or other benefits do not continue to accrue during the period of absence) upon the employee providing proper work authorization within 12 months from the date of termination. If the employee needs additional time, the Employer will rehire the employee into the next available opening in the employee's former classification, as a new hire without seniority, upon the employee providing proper work authorization with a maximum of 12 additional months. The parties agree that such employees would be subject to a probationary period in this event. [Sample Contract Language from United Food & Commercial Workers (UFCW), Local 428 in San Jos茅, CA] SECTION 18. RIGHTS OF IMMIGRANT WORKERS (a) Should the INS or any other government agency contact the Employer regarding the work authorization status of any bargaining unit employee, the Employer shall notify the Union by the next business day. (b) The Employer shall not reveal confidential information concerning employees to the INS or its agents, except as required by law. Confidential information includes employees' names, addresses, Social Security Numbers, or immigration status. (c) The Employer shall grant up to seven (7) days absence without pay with a minimum of seven (7) days notice where possible and proper INS notification, for INS proceedings. (d) The Employer shall comply with requests of workers to change their names and Social Security Numbers in the Employer's records with appropriate documentation, without prejudice to their seniority or other rights under this agreement. (e) The Employer shall not request information or documents from employees or applicants for employment as to their work authorization or identity, except as required by law. The Employer shall not retain in its file copies of the identity and work authorization documents presented by the employee. (f) Nothing herein shall require the Employer to violate the law, abridge its legal responsibilities, or circumvent any ordinances or laws. (g) The Employer shall not participate in any computer verification of immigration or work authorization status, except as required by law. (h) If the Employer receives notice from any government agency other than the INS regarding employee work authorization or identification, the Employer may inform the affected employee(s) so that they may take action on an individual basis. SECTION 19 WORK RULES The Employer may establish and enforce reasonable work rules and policies applicable to employees, provided that such work rules and policies are not in conflict with the provisions contained in this Agreement. Copies of rules and policies and changes thereto will be given to the Union.

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