Immigration and EEO Laws: Managing the “Cross-Over” Liability

Issues February 27, 2014

Presented by:

Marifrancis Morrison (Raleigh) Kevin S. Joyner (Raleigh)

Session Overview • Recent Regulatory Activity

• Pre-Hire Issues

• Title VII and Other Antidiscrimination Laws

• Unfair Immigration-Related Employment Practices

• FLSA & Wage/Hour Litigation

• National Labor Relations Act

• Terminations

Recent Legislation and Regulatory Activity

• DOMA ruling impact on Immigration • Comprehensive Immigration Reform • Compliance:

• ICE I-9 “superaudits” • H/L visa “site” visits

• H-1B quota

Pre-Hire Issues

Pre Hire Inquiries Are you legally authorized to work in the United States? (Yes

or No) Will you now or in the future require sponsorship for

employment visa status (e.g., H-1B status)? (Yes or No) Do not ask applicant to specify citizenship status or basis of

current employment authorization (can be basis of discrimination claim)

Do not specify documents to present or that are preferred

Pre-Hire Issues

• Pre-hiring Document Abuse • U.S. v. Swift & Co.: Document abuse can arise when a verification-related document request

or refusal occurs before hiring.

• Statute does not cover: • Undocumented workers • Employer with three or less employees (courts generally do not count part-time employees

who do not work each day of the working week) • National origin cases where discrimination covered by

Title VII

Pre-Hire Issues

• Document Abuse

INA 274B(a)(6): Discrimination due to document abuse—requesting more or different documents than required or refusing to accept documents which are genuine on their face with the intent to discriminate. See also Zamora v. Elite Logistics (also Title VII violation)

Document abuse arising out of national origin discrimination is within exclusive jurisdiction of OCAHO

and Unfair Immigration-Related Employment Practices (unless more than 14 employees)

As a result of IIRIRA Section 421, document abuse cases now require a finding of discriminatory intent—not simply a discriminatory impact.

Pre-Hire Issues

• Set validity period does not create an employment contract nor is one required for immigration purposes Geva v. Leo Burnett Co., Inc., 931 F.2d 1220 (7th Cir. 1991) Francis v. Gaylord Container Corporation, 837 F. Supp. 858 (S.D. Ohio 1992),

aff’d, 1993 U.S. App. LEXIS 27731 (6th Cir. 1993)

Pre-Hire Issues

E-Verify •What is it? •Who is subject to it? •Consequences for Non-Compliance •States Right to Require it Chamber of Commerce of the United States of America v. Whiting, No. 09-

115, U.S. Supreme Court (May 26, 2011).

Employment Discrimination Relating to Aliens

• Title VII prohibits discrimination in employment because of an individual’s national origin but not citizenship. Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973)

• The Immigration & Nationality Act (INA 274B) prohibits citizenship discrimination.

Unfair Immigration-Related Employment Practices

• Title VII: Exclusive for employers of 15 or more employees

• INA 274B: Protects individuals from national origin discrimination and “protected” individuals from citizenship discrimination by an employer in hiring, recruiting or discharging.

• Protected Individuals: • U.S. citizens or nationals • Asylees • Refugees (as long as they have applied for

naturalization within six months of eligibility)

• National Origin/Citizenship Discrimination • U.S. applicants who were rejected in H-2B and

permanent resident recruitment process may have a cause of action for citizenship discrimination if they are rejected for discriminatory reasons.

• A naturalized citizen alleging discrimination in favor of a native born citizen has a cause of action.

Unfair Immigration-Related Employment Practices

FLSA Collective Actions on the Rise

• Fair Labor Standards Act authorizes “collective actions”

• Plaintiffs act as representatives of the class

• Class is “opt-in” rather than “opt-out”

• Cannot settle without court or DOL approval

• The number of FLSA-related lawsuits rose from 5,210 in 2008 to 6,118 in 2009, a 17.4% increase

• Between January 1 and September 30 of 2010, the number has again increased 13% over the same period in 2009

FLSA Collective Actions on the Rise

FLSA Actions by Undocumented Workers

• Undocumented workers protected under FLSA.

• FLSA allows unpaid and underpaid workers to recover wages for past work performed. Patel v. Quality Inn South, 846 F. 2d 700 (11th Cir. 1988).

• Employee’s immigration status is irrelevant. Lin v. Chinatown Restaurant Corp., 2011 WL 1059530 (D. Mass. March 23, 2011)

FLSA Actions by Undocumented Workers

• Hoffman Plastic Compounds, Inc. v. NLRB, 364 F.3d 1057 (2002): Denied award of back pay to an undocumented worker laid off for his part in a union organizing drive

• Prior to Hoffman Plastics, undocumented workers were entitled to back pay under Title VII.

• Post-Hoffman Plastics, it is unsettled whether undocumented workers are entitled to back pay in Title VII cases.

DOL Wage & Hour Division Investigations

• DOL Wage & Hour Division (WHD) handles back wage claims brought by H-1B and H-2B employees

• Increase in DOL WHD investigations of H-1B and H-2B employers and investigators, with plans to increase further

• DOL’s “Plan, Prevent and Protect” Audit Initiative in 2010-2011 will target H-2B employers in the hospitality industry

Employer Wage & Hour Obligations for Certain Foreign National Employees

• Employer must pay the higher of the actual wage or prevailing wage for the following:

• H-1B Professionals • E-3 Professionals (Australians) • H-2B Seasonal/Peak-Load Workers

• Actual Wage: What employer pays similarly-situated workers

(experience, education, etc.)

• Prevailing Wage: Determined by the U.S. DOL

• Requiring employee to pay costs or legal fees association with obtaining H-1B status generally results in lowering wages below actual or prevailing wage

Furloughs and Reductions in Pay

• H-1B employers are obligated to pay the higher of the actual wage or prevailing wage.

• H-1B employers file a labor condition attestation (LCA) with DOL attesting to same.

• H-1B employees cannot be “benched”—must be paid even if non-productive time.

• “Benching” = being paid less than the wage stated on the LCA or working less hours than stated (underemployed)

• Texas technology firm was required under Immigration & Nationality Act (INA) to pay H-1B more than one year of back pay because the employer had failed to prove a bona fide termination.

• Employer did not report the termination of employment (change) and employee could not be “benched.”

• ALJ awarded $231,000 in back wages to “benched” employees and penalized the employer $40,000 in civil penalties.

Furloughs and Reductions in Pay

Furloughs and Reductions in Pay

Economic crisis concerns General likelihood of complaints to DOL – more

disgruntled workers Layoff of H-1B worker Furlough of H-1B worker Across-the-board wage reductions/reduced

hours

Employment & Labor Rights Under the National Labor Relations Act

• Undocumented and nonimmigrant workers are considered employees under the NLRA. Hoffman Plastics

• AgriProcessor Co., Inc. v. NLRB, 514 F. 3d 1 (D.C. Cir. 2008): undocumented workers were employees and allowed to vote in an election to unionize.

• NLRA protection does not extend to employees working temporarily outside the U.S. for U.S. employers. Asplundh Expert Co. v. NLRB, 365 F. 3d 168 (3d Cir. 2004).

Termination Issues

• Corporate Honesty Policies Employee who worked illegally for five years, lied on their Form I-9 and presented a

new Social Security card after obtaining lawful status was lawfully fired for violation of company’s honesty policy (no document abuse). It is lawful to terminate an employee who presented fraudulent documents at the

time of hire but subsequently obtained and presented valid documents. Contreras v. Cascade Fruit Company, 9 OCAHO No. 1090 (Feb. 4, 2003).

Termination Issues

• Terminating Foreign National Employees-any obligations? • Severance versus Employment status

• Treating Foreign National employees different than US workers

Questions and Answers

Presented by

•Marifrances Morrison (Raleigh) •Kevin Joyner (Raleigh)

1. Recognize there is a real threat. 2. Identify and evaluate business assets. 3. Implement a specific plan for safeguarding the

assets. 4. Secure physical trade secrets and limit access to

assets. 5. Confine intellectual knowledge. 6. Provide ongoing security training to employees.

Summary