This year’s wave of illegal immigrants swarming across our southern border has garnered its share of headlines and stirred up public outrage that helped unseat one congressional leader and kill immigration reform legislation at least for this year.
The event also raised serious questions about the Obama Administration’s commitment to enforcement of immigration laws. However, there is no doubt about the Administration’s eagerness to enforce immigrants’ labor law and civil rights protections in the U.S.
This year the Equal Employment Opportunity Commission ramped up a campaign of lawsuits against employers for requiring their workers to speak English where employers can’t prove that their job functions require that language proficiency.
Last year the National Labor Relations Board and Justice Department began coordinating assistance for employees targeted by employers who adhere to immigration laws. The NLRB and EEOC agreed to work with the Mexican government in providing immigrants with information about their labor law rights in the United States. (AA, 8-31-13, P. 3)
It is already well established that “undocumented workers” in the U.S. are protected by the National Labor Relations Act. Under the law, when they engage in concerted or union activities, the workers’ immigration status is irrelevant to the employer’s liability.
One problem: The U.S. Supreme Court has ruled that the NLRB lacks authority to order back pay and reinstatement for undocumented workers.
However, if an employer asserts this defense, the NLRB can require it to supply evidence proving the employee is an illegal immigrant. Being able to do so may get the employer in trouble if that same information may be used to show the employer knew of employees’ illegal status when they were hired or while they were working.
Gerard Morales, an attorney of the law firm of Snell & Wilmer, also warns that the current NLRB will resort to remedies other than reinstatement and back pay if it suspects discrimination involving undocumented workers.
In fact, the NLRB has said it is willing to consider all remedies within its statutory powers, “to prevent an employer from being unjustly enriched by its unlawful conduct,” he pointed out.
It’s not just the feds you need to worry about. On June 26 the California Supreme Court ruled that an employee could proceed with a discrimination suit under state law although he presented false work authorization documents to obtain employment. In doing so, the court held that the federal Immigration Reform and Control Act did not preempt California’s state anti-discrimination law.
How to Handle Government Visits
Obama Adminstration actions also may lead to site visits to your company from the U.S. Citizenship and Immigration Services, Department of Labor, Customs and Immigration Enforcement and State Department. Here’s how to protect yourself.
In many of these cases the initial investigation takes the form of “electronic site visits” by these agencies conducted via email and phone.
Following document retention best practices can save you from hefty civil and criminal penalties, lost productivity, and debarment from certain immigration programs, said attorneys Julie C. Ferguson and Maria Mejia-Opaciuch of the law firm of Carlton Fields Jorden Burt.
Make sure your company’s correct telephone and email contact information is used on all USCIS, DOL, or J-1 training program forms. Because most agencies require a response within three to five days, regularly check with your company contacts about emails or voicemail they may have received.
Your company’s designated contact must know to immediately notify immigration or employment counsel when learning of possible email or phone site visits. When the designated employee changes, make sure your new contact also knows to do this.
Advise all foreign nationals who are on a temporary work visa of a possible site visit, and provide them with a copy of their work visa petition. They should know its contents and be ready to respond to questions posed by the government official.
Request that an employer-designated party be present during any interview with any employee. Appoint such a person at each company location who and train them how to act during a site visit.
Be sure the first employee at a work site the government agent has contact with at the outset of a physical visit knows who to direct the visitor to. “Advise reception that no U.S. government agent is to visit the premises unescorted at any time,” Ferguson and Mejia-Opaciuch stressed.
Design and distribute an instruction sheet for reception and other designated employees covering the steps to take during a site visit. Your legal counsel contact information should be included on this sheet and you should update it annually.
Do not provide any documents or information until immigration or employment counsel is consulted and reviews them, the lawyers warned.
Also, Ferguson and Mejia-Opaciuch recommend conducting annual mock site visits at all company locations to ensure preparedness for an actual visit.