ICE Director: We Promise to Significantly Increase the Immigration Enforcement Pressure on All Employers

Thomas Homan, the acting director of Immigration and Customs Enforcement (ICE), echoed the Trump Administration’s immigration enforcement focus on employers as a crucial part of curbing undocumented immigration to the United States.

According to Homan, employers are at the core of the American immigration problem. “Unless you remove the magnets … they will keep coming …. As long as they’re coming to get a job, they’ll try to come. So we are stepping up work site enforcement,” said Homan in comments after his recent speech at the Heritage Foundation.

All employers are at risk of random Form I-9 inspections and other employment immigration compliance reviews, audits, and investigations. Emploers must be on notice that now, more than ever, ICE is watching, investigating, inspecting, auditing, and penalizing. “we’re taking work site enforcement very hard this year,” said Homan. “We’ve already increased the number of inspections and work site operations. You’re going to see that significantly increase the next fiscal year.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.

NLRB and Friends Publish Anti-Retaliation Joint Fact Sheet

“Retaliation Based on the Exercise of Workplace Rights is Unlawful” is a collaborative effort of the National Labor Relations Board, the Wage and Hour Division of the U.S. Department of Labor, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance Programs. The Fact Sheet reminds employers that it is unlawful to retaliate against employees for exercising their workplace rights, regardless of the workers’ immigration status. Although workers are “always entitled to pay for work actually performed, regardless of immigration status,” remedies may be limited for undocumented workers. For example, under the National Labor Relations Act, “reinstatement and back pay are not available as legal remedies for employees who do not have work authorization.”

The Fact Sheet, curiously released a few days before the inauguration of President Trump, underscores what some may view as a tension between Trump’s immigration stance and the legal protections afforded to all workers. Given Trump’s focus on immigration reform, it should come as no surprise that the key federal agency players in the workplace law arena have united to remind employers that the anti-retaliation protections apply all regardless of immigration status.

Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Undocumented Workers Entitled to Recover Unpaid Wages Under FLSA But Not Backpay Under NLRA

Illegal aliens who want to sue their employers for unpaid wages should do so in federal court in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, or South Dakota. Not in New York, D.C., or Connecticut.

An employer failed to properly complete Form I-9s verifying its workers’ employment eligibility. The workers sued for unpaid minimum and overtime wages. The Eighth Circuit – covering the strip of states in the middle of the country – awarded the workers damages. In doing so, it rejected the employer’s argument that the workers could not recover overtime or minimum wage because they were undocumented workers.

The Eighth Circuit reasoned that requiring wage payments for undocumented workers reduces any economic incentive to hire undocumented workers. Conversely, exempting unauthorized workers from overtime and minimum wage would frustrate the purposes of the Immigration Reform and Control Act (the IRCA) because the acceptance of substandard wages and working conditions for undocumented workers could seriously depress the wage scales and working conditions of authorized foreign workers.

If the above lawsuit was filed in the Second Circuit (NY, DC, CT) there may have been a different outcome. A group of undocumented aliens there were discharged for engaging in activity protected by the National Labor Relations Act but were denied backpay and reinstatement because they were undocumented aliens. The Second Circuit said that the undocumented aliens cannot recover because they were not lawfully employed to begin with. This case was sent back to the NLRB who is now determining whether the employees should be reinstated, minus backpay. This case also relied on the IRCA in reaching its conclusion.

Many of the smaller employers that I represent do not know about Form I-9 or that each employee must complete one at the time of hire. Or worse, they know about it, but do not do it. I repeatedly tell these companies that they are playing with fire. Employers can be audited at any time and penalties for non-compliance start at $100 – $1000 per day per violation.

All it takes is for a disgruntled former employee to call the government alleging a violation of most any workplace law – or have her attorney do so on her behalf – and companies will be required to prove that they have correctly completed Form I-9s for every employee. Remember, both lawsuits above were over wages, not immigration status. Government agencies are now connected with each other, share the same computer servers, and openly talk to each other about companies under investigation.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.