November 2021 Headnotes by Jessica Smith

12 He a d n o t e s l D a l l a s B a r A s s ociation

Focus

Novem ber 2021

Labor & Employment Law/Immigration Law

How Employment & Labor Law and Immigration Issues Intersect BY RICHARD A. GUMP AND KELLI GAVIN

Immigration law coexists, and sometimes conflicts, with labor and employment law. Actions or certain protocols that have no repercussions in an employment law context may have significant immigration-related consequences. Some examples include: 1. A restaurant cook makes a sexual harassment claim against chef who threatened her with deportation if she accused him of sexual harassment. HR has the responsibility to roll out a sexual harassment policy, which includes retention of the cook during the investigation. But, if the cook has now admitted she is an unauthorized worker, HR also has a duty to terminate her. How does HR address these conflicting requirements? 2. A business owner determines a key employee is unauthorized and orders HR to falsify the employee’s authorization on the Form I-9. What civil and criminal liability exists for the business owner? If the HR person hires an attorney for advice as to her obligations or liability, what advice does the attorney provide? Can the company’s attorney advise her? 3. An office building owner tells its management company to contract with a staffing company for janitorial services at a certain price point. However, all parties involved know that only unauthorized workers can be provided at that price point. Immigration law states that a person or entity cannot use a contract or subcontract to circumvent the verification rules. How do attorneys for the owner, manage-

ment company, and staffing company advise their respective clients regarding contracts and I-9 verifications without subjecting them to potential conspiracy to encourage unauthorized aliens to remain in the U.S.? 4. An IT company prefers H-1B workers over U.S. citizens, and a rejected U.S. citizen applicant complains. If the company follows the H-1B rules does the U.S. citizen have a discrimination argument? The H-1B rules do not prohibit preference for the H-1B employee but the EEOC and DOS Immigrant and Employee Rights Division (IER) can pursue discrimination claims if applicants are treated differently based on citizenship status. 5. A company with a subsidiary in Italy wants workers from Italy to travel to the U.S. on a B-1 business visa because the workers do not yet qualify for an L-1 intracompany transfer visa. What business activities are the workers allowed to do in the U.S. and how can they be paid? 6. ICE conducts an I-9 audit, and the audited company must terminate several unauthorized employees. The union contract forbids such action without union consultation. Company also enrolls in E-Verify to protect against unauthorized employees, but the union contract prohibits enrolling in E-Verify. Are these actions labor union contract violations? The examples above have nuances that can create significant liability for the unwary. Immigration attorneys should be consulted whenever an employment decision involves a foreign national to ensure no mis-

steps are made. Companies must be coached to ask for advice before acting because damage can be done through the smallest activity. Large fines, monitoring, and backpay could result from an adverse finding. Egregious violations in certain circumstances may elicit Racketeer Influenced and Corrupt Organizations Act (RICO) claims, criminal harboring, or fraud indictments. Something as simple as deducting from an employee’s pay to cover uniforms, attorney’s fees, insurance, etc. could cause the Department of Labor or U.S. Citizenship and Immigrations Services to investigate whether a foreign national is receiving the required wage. Even the employee onboarding process can be hazardous if employment and immigration counsel are not consistent with advice to HR. The duty to verify employees on Form I-9 can lead to civil fines for Form I-9 mistakes or hiring or continuing to employ violations once the employer knows of unauthorized workers. A pattern or practice of employing unauthorized aliens can be a criminal misdemeanor. If fraud or harboring is involved, criminal felony charges result. On the flip side, if the employer becomes too zealous in the verification process IER may investigate document abuse. If non-

citizen workers are prevalent in a workforce, IER and the Equal Employment Opportunity Commission (EEOC) may examine whether the employer preferred non-citizens over U.S. workers or unlawfully required certain documents in the verification process. Certain verification documentary acts may be deemed unfair immigration-related employment practices if made for the purpose or with the intent of discriminating against an individual. The government takes the position that “intent” includes acting in a way that has a disparate impact even though no intentional harm or discrimination was intended. Labor and employment claims tend to arise in a multitude of situations. Immigration-related issues may provide another layer of concern when verification laws are violated, or non-citizens are part of the workforce. Employment and labor attorneys and immigration attorneys should empower themselves with enough knowledge concerning potential issues that they know when to communicate and collaborate with their counterparts to protect their clients. HN Richard Gump and Kelli Gavin are attorneys at the Law Offices of Richard A. Gump, Jr., P.C., and can be reached at rick@rickgump.com and kelli@rickgump.com, respectively.

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Rick Gump has completed his 48th year of practicing immigration law. Our ﬁrm of four accomplished lawyers concentrates on strategic planning for international personnel. Our practice consists of business and family visas, citizenship and worksite compliance audits for companies which may be facing an ICE investigation or engaging in a merger and acquisition. We represent all types of businesses, schools and universities, athletes, agricultural ﬁrms, investors, and individuals seeking a managed plan through the immigration maze. Mr. Gump has been selected by his peers as a Texas Super Lawyer for the past 18 years and recognized in the International Who’s Who in Business. He is one of a distinguished group of attorneys who have now been listed in Best Lawyers in Dallas 2014-2021 and listed in Texas Lawyer’s Go-to-Guide for top notch lawyers. An active speaker and published writer, he has served as an expert witness in various immigration cases and has been a faculty member for numerous immigration conferences.

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November 2021 Headnotes

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How Employment & Labor Law and Immigration Issues Intersect