Four Hot Labor and Employment Issues in Automotive in 2017 - Part 2

by Foley & Lardner LLP

Friday we took a look at two important labor and employment questions for automotive employers and suggested next steps to consider during 2017. Today we’ll examine questions three and four.

3. Are you in compliance with Form I-9, Employment Eligibility Verification requirements and other compliance obligations under federal immigration laws?

The United States Department of Homeland Security (DHS) has issued a revised version of Form I-9, Employment Eligibility Verification. Employers are required to complete and maintain the Form I-9 for every person who is hired in the United States after November 6, 1986. The newest version of the Form I-9 must be used as of January 22, 2017 for new hires and reverifications.

The new version of Form I-9 follows DHS’s increase in the fine levels that may be imposed for I-9 violations. Under the new fine schedule, employers now face penalties as follows:

  • I-9 paperwork violations: $216 to $2,156 per Form I-9
  • Knowingly employing unauthorized alien (first offense): $539 to $4,313 per violation
  • Knowingly employing unauthorized alien (second offense): $4,313 to $10,781 per violation
  • Knowingly employing unauthorized alien (third or more offenses): $6,469 to $21,563 per violation
  • E-verify employers – failure to inform DHS of continuing employment following a Final Nonconfirmation: $751 to $1,502 per violation.

The United States Department of Justice (DOJ) enforces the antidiscrimination provisions of the I-9 rules and, as did DHS, the DOJ has also increased penalties for “document abuse” and unlawful employment practices. Document abuse usually occurs when an employer asks for specific documents or for more or different documents after the employee already has presented qualifying I-9 documents. Unfair immigration-related employment practices may occur when an employer treats job applicants and/or employees differently based upon their national origin or citizenship status while implementing I-9 procedures or addressing I-9 issues.

Penalties for document abuse and unfair-immigration related employment practices are now as follows:

  • Document abuse: $178 to $1,782 per violation
  • Unfair immigration-related employment practices (first offense): $445 to $3,563 per violation
  • Unfair immigration-related employment practices (second offense): $3,563 to $8,908 per violation
  • Unfair immigration-related employment practices (third or more offenses): $5,345 – $17,816 per violation.

Although we are less than one month into the new administration, President Trump has already begun fulfilling his campaign promises on enforcement of the federal immigration laws. We anticipate that DHS, through its Immigration and Customs Enforcement (ICE) division, will increase the number of I-9 inspections and worksite visits. Just recently, federal agents conducted immigration enforcement raids at homes and workplaces in Atlanta, Chicago, New York, the Los Angeles area, North Carolina and South Carolina and arrested hundreds of undocumented immigrants.

Another change that the Trump Administration may seek is to make E-Verify enrollment mandatory. Currently, with some exceptions, E-Verify is a voluntary, web-based government program in which employers may enroll to verify employment authorization. E-Verify is a step beyond the I-9 process, and most employers may presently choose whether to take on this additional obligation. However, in the future, all employers may be required to participate in the E-Verify program.

Additionally, the Trump administration has signaled that DHS and the Department of Labor (DOL) are likely to step up compliance investigations in H-1B and L-1 intracompany transfer cases. As a result, employers should expect more random, unannounced onsite visits from DHS within the six months after a final decision in such cases. The visits in L-1 cases will be expanded from the current new office extension cases to all types of L-1 cases. Moreover, the DOL is likely to become even more aggressive in enforcing the Labor Condition Application obligations in H-1B cases. The DOL will scrutinize the compliance files and investigate whether the employer is meeting the H-1B obligations as to wages, working conditions, assigned worksites, and related issues.

Suggested next steps

Employers should review their I-9 procedures to ensure compliance with the law. Further, to minimize violations, employers should assign only trained staff to be responsible for the I-9 process with new hires and existing employees (if reverification is required). Employers should also periodically conduct internal audits of their existing I-9 Forms to check compliance. Employers that undertake immigration cases should ensure that they are meeting all requirements under the complex regulatory scheme for H-1B and L-1 cases.

4. What are the other anticipated hot topics in 2017?

Other anticipated hot topics for 2017 include paid sick leave; lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights; and reasonable accommodations for religious practices, disabilities, and pregnancy.

Paid sick leave will continue to be a hot topic. Effective January 1, 2017, certain federal contractors entering into new covered contracts will be required to provide one hour of paid sick leave for every 30 hours worked, up to 56 hours (seven days) in a year. Although momentum for federal paid sick leave was growing prior to the election of Donald Trump — and Trump, himself, had suggested during his campaign that he may require employers to provide six weeks of paid maternity leave for new mothers — it remains to be seen whether President Trump will support paid leave efforts or take action to roll back paid sick leave requirements, including the new requirements for federal contractors. Either way, employers will still have to deal with a variety of paid leave laws, with paid sick leave benefits now mandated or in the process of implementation in several states (including California, Connecticut, Massachusetts, Oregon, and Vermont) and localities (including Chicago, Minneapolis, New York City, Portland, San Diego, Seattle, and most recently, Washington, D.C.). These laws will continue to cause compliance difficulties for multistate employers given the varying requirements and lack of consistency from location to location.

LGBTQ employee rights in the workplace and the law in this area continue to evolve. In the past two years alone:

  • The U.S. Supreme Court has upheld same-sex marriage as a constitutional right;
  • The EEOC has litigated and obtained settlements in cases over the issue of whether discrimination based on gender identity or sexual orientation violates Title VII;
  • The Obama administration enacted regulations to protect workers who are employed by, or seeking jobs with, companies doing business with the federal government from sexual orientation or gender identity discrimination;
  • In its Strategic Enforcement Plan for 2017 – 2021, the Equal Employment Opportunity Commission (EEOC) identified protecting LGBTQ people from discrimination based on sexual orientation as an emerging and developing priority; and
  • The United States Court of Appeals for the Seventh Circuit could be the first federal appellate court to determine that Title VII protects against job discrimination based on sexual orientation.

Consequently, employers are encouraged to stay ahead of this trend by developing and enforcing policies prohibiting discrimination and harassment based on sexual orientation and gender identity and expression, in addition to other protected characteristics.

Finally, automotive employers should be mindful of the duty to accommodate applicants and employees based on pregnancy, disability, and religious practices. In its Strategic Enforcement Plan for 2017 – 2021, the EEOC identified accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act and the Pregnancy Discrimination Act as an emerging and developing priority, and it published guidance on discrimination based on national origin and related religious views. Likewise, courts continue to focus on the employer’s duty to accommodate and the particular burdens of requested accommodations. Therefore, if you suspect that an employee is experiencing difficulty performing his or her job due to pregnancy, a potential disability, or a religious belief, the best course is to proactively discuss the situation with the employee and, when appropriate, provide a reasonable accommodation and/or otherwise begin the interactive process. Training managers and human resources personnel is also key to ensuring that the interactive process occurs and reasonable accommodations are identified and thoroughly evaluated in appropriate circumstances.

For additional information about these developments and more

Foley’s experienced Automotive Industry Team has prepared a full report, entitled “Top Legal Issues Facing the Automotive Industry in 2017,” that examines the road ahead regarding antitrust, security, labor and employment, M&A, and more. Download it today.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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