The following article is based on a panel presentation at The HR Network, which is sponsored by the Five O’Clock Club. The HR Network is a vendor-free venue for HR professionals to meet informally and hear discussions of important issues of the day. The panelists were two attorneys: Pierre Bonnefil, a Member of the Firm in the Immigration Law Group of the Labor and Employment practice of Epstein Becker Green in New York, and Leslie Silverman, a partner in the Labor & Employment Law Department in the Washington, D.C. office of Proskauer.
A Labor Law Post-Election Heads-Up: Insights About Where Things Are Heading
As President Obama enters his second term, employers have a wide array of important immigration and employment law issues to watch for.
By John Carle
Immigration Law: What Employers Should Watch for in 2013
As President Obama embarks on his second term, a key question for employers is how the expected immigration law
reforms will affect their employees and their businesses, and what steps they can take to ensure compliance.
While the federal government has been debating sweeping changes to immigration law, employers can expect more of the same in at least one key area: stricter law enforcement. Since 2006, there has been a consistent increase in fines, prosecutions, and investigations, and the trend will continue in 2013.
“A lot of money is being thrown at the Immigration and Customs Enforcement, or ICE, and they’re really going after employers,” says one immigration attorney. “You can see it in the cases. Like any other business, they’re looking for publicity. So they are going after the big tickets, as they say, but they’re also going after the small tickets.”
One violation that ICE will probably continue to focus on is improper hiring practices, such as wrongful classification of workers. Misclassifications are often done in order to bring on applicants who lack proper paperwork, such as that required by Form I-9, which authenticates an individual’s identity and eligibility to work in the United States. Employers should know that, for example, an individual who functions as an employee cannot be claimed as an independent contractor to avoid certain legal requirements.
Employers should expect stricter law enforcement of immigration laws, especially improper hiring practices and the wrongful classification of workers.
“Employers may think that they are going to get away from having to submit an I-9 form,” says one expert, “but then they’re knowingly violating the immigration law, which now not only imposes civil fines, but also, if it’s a pattern, criminal violations and asset forfeitures. So it’s a very slippery slope and employers really need to be careful.”
The Form I-9 is quite simple to complete but many employers look the other way and don’t fill it out completely, or fill it out incorrectly. That will likely trigger an investigation, and possibly an eventual raid or audit. It’s important to take the document seriously.
The landmark Wal-Mart case indicates how the law has expanded its reach. In that suit, the retail giant ended up paying
$11 million in fines in 2005 for using contractors who provided illegal immigrants for cleaning services. The court ruled that Wal-Mart should have known the workers were unlawfully in the U.S., even though they were not Wal-Mart employees.
Comments one lawyer: “The courts are saying, ‘be careful because we’re going to impute the knowledge to you and you should have done something about it.’ So it’s important to keep in mind that ICE is not going to stop at the borders. They’re going to go further. They’re going to really go after people.”
Don’t forget those I-9 forms.
Be vigilant about possible applicant fraud.
And educate the company’s management team.
Assess Legal Exposure
The first step that employers should take to protect themselves is to assess their legal exposure. A top immigration attorney might pose a series of questions for employers to examine, such as: What are your patterns? What are your activities leading to? Legal counsel would look into what the answers might mean in terms of legal exposure. There might be additional questions: Is something being done that is going to raise serious legal problems? Could it lead to an investigation or a shut-down of the company?
To avoid such legal issues, it is important to educate the company’s management team.
One expert notes: “Let the management team know ‘you can’t do this, you can do that, you might not want to do this and you definitely shouldn’t do that.’ Work with the team closely to let them know what needs to be done and what should not be done.” Develop a strong policy that must be followed by everybody in the company.
Human resources departments must be especially vigilant about identifying fraud among job applicants.
“Often somebody shows up at an office with an invalid identification card of some sort and it was taken as a valid document, so the person was allowed to work. That clearly can’t be allowed to happen,” says one lawyer.
In addition, there has been a rise in the number of discrimination claims by foreign nationals, another trend expected to continue.
In the Form I-9 context, such suits can arise when individuals in HR departments ask for additional documents or ask inappropriate questions. So employers need to be careful about that in terms of the Form I-9 completion.
In other cases, disgruntled employees have filed complaints claiming they were let go because of their country of origin or because an HR department asked for inappropriate documents.
The number of such complaints is expected to rise and they may become almost common. How to avoid it? Again, it’s the training. Work with the HR department to explain the proper procedure for the Form I-9.
Another development that employers should be aware of is the increasing use of E-Verify, a database that assists in identifying the employment authorization of individuals. E-Verify provides a sort of seal of approval using the Department of Homeland Security database and the Social Security database. Using E-Verify is not mandatory, except with federal contracts. The tricky part about E-Verify is that in certain states it is mandatory, but not in others. There has been a general trend toward making the use of E-Verify mandatory across the U.S. And E-Verify, according to one expert, “can throw a number of monkey wrenches into what an HR professional does on a day-to-day basis.”
As for other potentially significant issues that comprehensive immigration law reform may bring, experts say that these remain difficult to predict. President Obama has made reform a priority for his second term, and a bipartisan group of senators has issued a reform plan. Meanwhile, say experts, employers should plan for stricter law enforcement and take precautions to limit their legal exposure.
There is a trend toward making the use of E-Verify mandatory.
Another important agency that employers should watch for changes in the coming months is the Equal Employment Opportunity Commission.
In late December 2012, the EEOC approved its first Strategic Enforcement Plan, which is expected to prove significant. It is a product of a multi-year effort by a team including EEOC Chair Jacquelyn Berrien, and is intended as a blueprint for the EEOC’s enforcement activities for the foreseeable future. The plan calls attention to nearly all the hot-button issues, and lists six broad enforcement areas that the agency has indicated will receive focused attention:
- Discriminatory, class-based recruitment and hiring. The EEOC has already been focused on class actions, and the plan makes clear that the agency will continue to go after class-based recruitment and hiring that intentionally discriminate against or, more likely, that have an adverse impact on, a particular group, such as racial, ethnic, religious groups, older workers, women and people with disabilities. Such practices would include channeling or steering individuals into specific jobs based on status and particular groups, restrictive application processes, and the use of screening tools, such as pre-employment tests.
- Vulnerable workers. Disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting immigrant, migrant, and vulnerable workers are other areas where the EEOC sees its mission as important. The vulnerable populations, the immigrants, are not native English speakers, and often they don’t know their rights under U.S. law. So the EEOC sees that it has a role in this area. In the past the agency has been creative with national origin discrimination claims.
- Emerging areas of law. As the only federal agency devoted exclusively to eradicating discrimination in employment, the EEOC has always sought to be on the cutting edge. The Strategic Enforcement Plan lists what, in the near-term, the EEOC believes are key emerging issues.
Be careful about hiring practices that may have an adverse impact on certain protected classes, such as steering certain categories of people into specific jobs.
- The Americans with Disabilities Act and the ADA Amendments Act. These are relatively new laws, and the EEOC, the agency charged with implementing them, wants to expand their coverage. There will be more challenges for employers on issues such as reasonable accommodations and inflexible leave of absence policies. “It’s very important for employers to look at their leave of absence policy,” noted one lawyer. “The EEOC is saying that if an employer cuts off somebody at a particular time set in advance, then it is not doing an individualized assessment, and is violating the ADA.”
- Mental Disabilities. The EEOC will also probably go after issues having to do with people with mental disabilities or alleged mental disabilities, so behavioral issues and reasonable accommodations will be important in this area, as will qualification standards, “undue hardship,” and “direct threat” exceptions.
The EEOC has always sought to be on the cutting edge in eradicating discrimination in employment.
- Pregnancy and accommodating pregnancy-related limitations under the ADA. There is a legal question as to whether pregnancy, which is of relatively short duration, actually qualifies as a disability, and so it is considered an emerging legal issue.
- Lesbian, gay, bisexual, and transgender individuals. The EEOC is planning, in the emerging issues area, to pursue cases that would extend the coverage of lesbian, gay, bisexual, and transgender individuals under Title VII of the Civil Rights Act of 1964.
- Compensation systems and practices that discriminate based on gender. There was a task force on this issue during the first Obama term and agencies were to be working on what could they do. However, little on this issue has come from the EEOC. Last year, it was revealed that several EEOC District Offices were conducting a pilot project using directed investigations as a means to approach and audit employer pay practices, even without a prior charge of discrimination. A directed investigation can be filed by the EEOC District Office. They don’t need a charge to investigate. What they were doing was making it into an audit-type situation. The Strategic Enforcement Plan (SEP) specifically mentions using directed investigations and Commissioner charges, which would be used under Title VII. This means that EEOC is going to continue this line. “We may see more directed investigations,” remarks one lawyer, “but we definitely will see something from the EEOC in the compensation area and claims of compensation discrimination, particularly mid- and high-level female employee issues. The EEOC takes them very seriously.”
- Preserving access to the legal system. The EEOC opposes employment policies and practices that discourage or prevent employees from seeking legal recourse for discrimination. Retaliation charges have surpassed race charges to become the most-often filed charge with the agency. “It’s an area employers should be overly cautious about,” says one lawyer. “In addition, employers should be cautious about the language used in waivers and settlement agreements, because the EEOC will continue going after employers who require employees to sign overly broad waivers, or a provision in a settlement agreement that prohibits employees from filing charges with, or cooperating with, the EEOC.
- Systemic harassment. EEOC is looking more at class-based vehicles than at single-action harassment. For the most part, the SEP signals that the agency will spend less time on individual harassment. But even single plaintiff harassment is still to be taken seriously.
The EEOC can conduct a targeted investigation even if there has been no prior charge of discrimination against the organization.
The NLRB and DOL
Employers should also watch for developments at the National Labor Relations Board. Of particular interest to employment experts are the parameters of “protected concerted activity.” If an employer is conducting a workplace investigation and directs employees to keep certain information confidential because they don’t want it to derail the investigation, they could be found to have interfered with their employees’ right to engage in protected concerted activity. This approach is also being used with respect to handbook provisions and in social media cases where employees say things over social media.
There are also important issues for employers to monitor at the Department of Labor.
Government contractors should be warily anticipating two new regulations that were in the final stages of the rule-making process in the Fall of 2012. These regulations are intended to bolster federal contractors’ recruitment efforts and employment of veterans and individuals with disabilities. They’ll require contractors to ask every applicant for employment to self-identify as an individual with a disability on the application and again later in the process. They’ll require contractors to survey their entire workforce each year to ascertain disability status. And the rule will require employers to track every reasonable accommodation request, no matter how informal.
Lastly, there will be a government requirement that federal contractors conduct more substantive analysis of their recruitment and place in action terms of employment of veterans. And this will include numerical targets to measure the effectiveness of the efforts and strong record-keeping requirements.
All of which indicates that, as President Obama enters his second term, employers have a wide array of important immigration and employment law issues to watch for.