How Employment & Labor Law and Immigration Issues Intersect

Focus 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, management 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 missteps 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 noncitizen 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.

DAYL Foundation Fellows Luncheon

Thursday, December 9, Noon – 1:00 p.m. at the Arts District Mansion

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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.

Keynote speaker: John Creuzot, Dallas County District Attorney For more information, email cherieh@dayl.com.

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New Culinaire Staff at the Arts District Mansion

STAFF REPORT

The Arts District Mansion, Home of the Dallas Bar Association, welcomes two new members to the Culinaire staff.

Executive Chef Andrew Bell has a wide range of culinary experience. He has owned and operated a catering company and BBQ restaurant in Dallas. Before joining the Culinaire team he was the Executive Banquet Chef at the Joule Hotel. In addition, Chef Andrew was the Executive Chef for Saint Ann with Harwood in Dallas for five years and prior to that, he worked at Aurora; a restaurant styled after a Michelin star caliber restaurant that focused on multiple-course tasting menus. Chef Andrew lived in Austin for several years, where he worked with Tyson Cole at Uchi Sushi Bar and was one of the opening chefs for Wink restaurant, a pioneer in the farm to table movement in the Austin dining. He loves to find local ingredients that he can use in the restaurant and his home, cooking with his family.

Also joining the Culinare staff at the Arts District Mansion is Hillary Slatton, Catering Sales Manager. Hillary was born in Marfa, Texas, but grew up in San Antonio. After receiving a degree from the University of Texas Austin, she moved to the Dallas area and has been working in the hospitality industry ever since. She has worked at a variety of hotel venues in the sales and catering capacities for over the last 18 years, including urban luxury hotels, a convention center property, and a lakeside resort. Most recently, she was Conference Services Manager for the historic Le Méridien Dallas, The Stoneleigh Hotel in Uptown. In her free time, Mrs. Slatton’s hobbies include spending time with her family and friends (including her husband, 3 children and 3 fur babies) trying new restaurants, watching horror movies, and traveling.

The Dallas Bar Association is pleased to welcome Chef Andrew and Mrs. Slatton to the Arts District Mansion. HN

Being an effective negotiator takes skill, practice, and preparation. When you negotiate in ways that work, you will have a significantly better outcome.

Chef Andrew Bell

Hillary Slatton

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Negotiation Principles, Techniques and Strategies

BY KATHRYN J. MURPHY

Preparing for the Negotiation Process

Prepare for the negotiation by making sure you have all the information you need to negotiate, including financial, legal, and other information necessary to make informed choices, such as appraisals and expert opinions. Understanding the goals and interests of both parties can often lead to a creative win-win agreement—or at least a settlement that each party will find acceptable.

In preparing for the negotiation, an opening offer should be prepared in writing even if you decide not to present it to the other party first. It is also a good idea to prepare an initial draft of the settlement agreement prior to the negotiation so it can be carefully considered, and the draft can be compared to the final agreement to make sure all terms are included.

Problem-Solving Model

An effective problem-solving model is to identify the problem, brainstorm all options for solving it, discuss and evaluate the likely outcomes of each option, and select the most acceptable option. The options should be evaluated from emotional, financial, and legal perspectives. You should look at the options based on what might happen at the courthouse, and how important it is to have certainty instead of the risk of a judicial outcome.

Concessions

Negotiators should carefully plan their strategy and not rush to make concessions or concede too much at once. It is also generally a mistake to make concessions when the other party is not moving. Skilled negotiators should make concessions on issues that are least important to them. Offer the other party something valuable to them in exchange for something valuable to you. The concessions should taper toward the end to communicate to the other side you are nearing your walk away number or position. It is almost inevitable in negotiations that one party will suggest “splitting the difference” to close the gap. However, one party may have made significant concessions, and then when the other party suggests splitting the difference, it is as if the past never occurred.

Handling Impasses

An impasse can be handled by setting aside the major problem issues and talking about some of the smaller issues to gain momentum. Enough issues should be kept open so that both sides can feel they have won, and if you are down to one issue, determine if you can add other issues to the discussion. The dynamics of the negotiation can also be changed to create momentum, such as changing the people in the negotiating team, finding ways to ease the tension, restructuring the deal, or changing the style of the negotiation. Asking questions can also assist with an impasse, such as what would happen if we did this; what do you see happening as the likely outcome of the options; and what is the most effective thing we can do right now?

Ultimatums

You can project that you are prepared to walk away, and you are considering that option, however, ultimatums should be avoided. Ultimatums should only be used when you are prepared to do what you have threatened to do because most people who issue ultimatums are bluffing. You can respond to an ultimatum of the other party by calling their bluff and find a face-saving way for them to continue the negotiations.

Emotions In Negotiation

You should emotionally prepare for the negotiation to stimulate positive emotions that will enhance the effectiveness of the negotiation. You should have a clear understanding of the substantive issues and feel calm and confident enough to maintain a clear focus during the negotiation. If strong negative emotions such as anger, fear, or frustration are unaddressed, there is a good likelihood those emotions will prevent you from making a wise agreement. Some people believe they can behave aggressively in a negotiation to intimidate and weaken the other party. Those who have temper tantrums are often not effective negotiators as many temper tantrums are not genuine.

An apology can be very powerful in a negotiation. An apology should express empathy for the other person’s feelings and express regret. If you believe you have not done anything that would require an apology, you can still apologize that the situation has caused the other party sadness and stress.HN

Kathryn Murphy is a partner at Goranson Bain Ausley, PLLC. She can be reached at kmurphy@gbafamilylaw.com.

EMERITUS MEMBERS

The Dallas Bar Association honors members who have contributed to the legal profession for 50 or more years. All 50-year members are invited to attend the DBA Annual Meeting on Friday, October 29, 2021 at 3:30 p.m. to be recognized. Send RSVP to Elizabeth Hayden at 214-220-7474 or lhayden@dallasbar.org.

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