By Neemah Esmaeilpour
Donald Trump’s victory in November has generated many questions for employers: How will a tough stance on immigration affect my business? Will workplace scrutiny by the NLRB lessen? Will there be a shift in emphasis on civil rights issues, such as LGBT rights? Will a change in administration from Democratic to Republican create a shift in policy that is more business- and HR-friendly? While we may not be able to answer these questions with any sort of certainty at this point in time, there are a few areas of the law which will undoubtedly be affected by the incoming administration. In this article, we’ll take a look at three areas that HR professionals should watch for movement in the coming year.
Immigration Law Compliance: Preparing for a Trump Administration
There is one area slated for change in which employers can prepare for now – immigration. While President-elect Trump’s proposal for “an impenetrable wall” along the southern border has garnered the most attention, his other immigration policies likely will have a more direct and immediate impact for employers.
As an employer you may be thinking, “Well, I don’t have any foreign workers, so changes in immigration policy won’t affect me, right?” Wrong. Trump has consistently stated that he wants to deter illegal immigration by “turning off the jobs and benefits magnet” that attracts foreign workers. In other words, he wants to crack down on businesses that employ individuals without work authorization. Practically speaking, this likely means more worksite-enforcement visits from Immigrations and Customs Enforcement (ICE) to check whether there are workers employed without work authorization. Such visits commonly occur by ICE agents who arrive unannounced (or with very little notice) seeking to audit the company’s I-9 forms. To accomplish his goal of increased enforcement, Trump has proposed tripling the number of ICE agents. Trump has also suggested that E-Verify should be mandatory for all employers. But keep in mind that E-Verify is separate from Form I-9; it does not replace it. In short, employers need to be prepared for an increase in I-9 audits by a beefed-up ICE agency.
During an ICE audit, employers can find themselves in trouble not only if they have unauthorized workers, but (more commonly) because they did not properly prepare or maintain their I-9 forms for each employee. And penalties can be steep – fines generally start around $200 and go up to several thousand dollars per offense.
So what should employers do to get ready for a possible audit? Like most things, you need to prepare. Do not wait until ICE is on-site demanding to see all of your I-9 forms. Employers would be wise to conduct an internal I-9 audit to identify and correct potential problems now. If you need another reason to conduct an internal audit, keep in mind that you will be given a safe harbor if ICE discovers an unauthorized worker, but only if you have properly prepared and maintained your I-9 forms.
Unfortunately, self-audits can create problems when employers choose to perform the audit themselves and then commit mistakes that lead to further violations. Common mistakes include filling out new I-9s for employees and throwing the old ones away, making revisions to I-9 forms without signing and dating the changes, and preparing new I-9 forms to correct mistakes and backdating them so they appear to be timely. Even if these mistakes are “innocent,” they can lead to stiff fines. Therefore, the better practice would be to engage an outside firm to perform the audit, especially if it is the company’s first audit or if the company suspects there may be issues. Employers can also use an external audit as an opportunity to update I-9 policies and to train compliance employees on proper procedures to prevent future mistakes.
While the future of employer regulations may be uncertain, conducting an internal I-9 audit is an easy step employers can take to ensure they are complying with both current immigration law and likely changes by the Trump administration.
Protected Concerted Activity Under the National Labor Relations Act: Where Do We Stand?
Recently, the National Labor Relations Board (Board) seems to be focusing more on violations of the National Labor Relations Act (Act) involving non-unionized employees. That’s right, non-union employees as well as employees represented by a union are protected by the Act. Under Section 7 of the Act, employees have a right to engage in “concerted activities for the purpose of … mutual aid or protection” or “protected concerted activity.” Protected concerted activity involves two or more employees taking action for their mutual aid or protection regarding terms and conditions of their employment. The Board’s concept of the type of conduct protected by Section 7 is broader than you might expect.
For example, an employee at a used car dealership in Yuma, Arizona complained to his manager about how sales commissions were being calculated. Later, the owner asked the employee to come to a meeting in the sales manager’s office. During the meeting, the employee lost his temper and began yelling at the owner calling him a “f##king mother f##ker,” a “f##king crook” and an “a##hole.” He also told the owner he was “stupid” and stood up during the meeting, pushed his chair aside and warned the owner that if he was fired, the owner would “regret it.” The employee was terminated by the owner for his conduct at the meeting. After reviewing the facts, the Board concluded that the employee’s conduct was protected by Section 7 of the Act and it was against the law for the owner to fire him.
In a similar case, an employee of a catering company became upset because he thought a supervisor had been disrespectful of his co-workers. The employee posted on Facebook that the supervisor was “a nasty mother f##ker,” a “loser,” and said “f##k his mother and his entire f##king family.” When the posting was brought to the attention of the employer, the employee was fired. The Board found that the employee’s Facebook posting was not so egregious as to lose protection under Section 7 of the Act. The Board ordered the employer to reinstate the employee and pay him full back pay.
The moral of these stories is that employers must be very careful about how they deal with situations that could involve an employee engaged in protected concerted activity under the National Labor Relations Act. However, there is some hope amongst employers that relief from what some would consider overreaching decisions by a Board controlled by President Obama’s appointees may be on its way.
Currently, the five-member National Labor Relations Board consists of only three members: two Democrats and one Republican. The two vacant seats will be filled by President-elect Trump, giving Republicans majority control of the Board.
LGBT Rights in the Workplace: What’s Next?
In the summer of 2015, the United States Supreme Court issued a landmark decision affecting the LGBT community when the court ruled that same-sex couples have a constitutional right to marry. While there were no such watershed LGBT decisions in 2016, several legal issues are working their way through state legislatures and the lower courts.
For example, in 2016 several federal courts considered whether to overturn years of precedent and adopt the United States Equal Employment Opportunity Commission’s (EEOC) position that Title VII’s prohibition against “discrimination because of sex” includes a prohibition against sexual orientation discrimination. In oral argument held in late November, the judges of the Seventh Circuit seemed inclined to rule that Title VII does cover sexual orientation discrimination. It seems inevitable that this question will ultimately have to be resolved by the Supreme Court.
Many states will likely follow suit. For instance, like Title VII, the Arkansas Civil Rights Act (ACRA) does not list sexual orientation or gender identity as a protected class, but Arkansas courts have looked to Title VII when interpreting the ACRA. If Title VII is ultimately found to prohibit sexual orientation discrimination, we can expect plaintiffs to argue that the ACRA should be interpreted the same way.
At the agency level, under the Obama administration, the EEOC has identified sexual orientation and gender identity discrimination as an enforcement priority. Many have questioned whether that enforcement priority will change under the incoming administration.
Transgender employees’ restroom access is another area in which legal challenges are working their way through the courts. Thus far in the 2017 legislative session, state legislators in eight states – Alabama, Kentucky, Minnesota, Missouri, South Carolina, Texas, Virginia and Washington – have prefiled or introduced legislation that would restrict access to multiuser restrooms, locker rooms and other sex-segregated facilities on the basis of a definition of sex or gender consistent with sex assigned at birth or “biological sex.” North Carolina’s controversial bathroom access law is the subject of more than one pending lawsuit. Some believe North Carolina’s governor lost his re-election bid at least in part because of the bathroom bill, which many business groups opposed. Similar scrutiny is likely to befall other states that pass similar legislation.