On Wednesday, May 24, our very own Kevin McNamara, Jen Rubin, and Bill Coffman will lead a live seminar in our San Diego office designed for in-house counsel, immigration specialists, HR professionals, talent managers, and other internal stakeholders to review changes affecting the hiring and continued employment of foreign nationals and provide guidance for compliance in an era of increased enforcement. Topics will include:

  • Worksite visit preparation, including recordkeeping requirements
  • New, highly-skilled worker regulations and how they help you and your employees
  • Immigration consequences of hiring, terminations, and mergers & acquisitions
  • I-9, E-Verify, and H-1B compliance

Similar seminars in Boston and New York received great reviews. Don’t miss out! For additional details and to register, click here or contact Cassie Bent at CMBent@mintz.com.

As a result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, higher immigration fines and penalties will go into effect on August 1, 2016.   The fines and penalties cover Form I-9 paperwork violations, the unlawful employment of immigrant workers, certain temporary work visa programs, and immigration-related discrimination in hiring and employment. While these fines come into effect on August 1, they will be used for violations that occurred after November 2, 2015, the day the bill was signed into law.

Continue Reading Higher Immigration Penalties for I-9 and Other Violations Going Into Effect August 1, 2016

A New York federal court recently said that the plaintiff-employees involved in a wage and hour lawsuit are not required to produce their immigration documents and information.  The case is important because it limits an employer’s ability to defend against such claims based on their workers’ potential illegal immigration status.

In Rosas et al. v. Alice’s Tea Cup, the employer-defendants requested that the plaintiff-employees produce evidence of their immigration status, their work authorization documents, tax returns, and their current employers’ identity in connection with their overtime claims under the Fair Labor Standards Act and the New York Labor Law.  They also sought admissions to the workers’ use of false or fictitious Social Security numbers.  The plaintiff-employees told the court this information was irrelevant to whether the defendant-employers failed to pay them correctly.  The defendant-employers argued that the workers’ immigration status and work authorization documents were relevant to a determination of the workers’ ability to recover under the FLSA and NYLL, their credibility, and would explain the absence of some payroll records that should have been kept by the employer.

The Decision
U.S. Magistrate Judge Francis concluded that the risk of injury to the workers and the “danger of intimidation” that such request would have on any worker outweighed the probative value of such evidence in showing the plaintiffs’ credibility and the absence of payroll records.  Most importantly, Judge Francis dismissed the defendant-employers’ argument that the workers’ immigration status and work authorization were germane to workers’ ability to recover under the FLSA and NYLL.  Judge Francis held that “Federal courts have made clear that the protections of the FLSA are available to citizens and undocumented workers alike.”

What This Means for You
This case underscores that all workers are protected by the FLSA and NYLL for work performed, whether the workers are authorized to work or not.  As a result, any information or request for immigration documents will likely be quashed by the courts (especially in California and New York), as irrelevant and/or undiscoverable.

Moreover, the U.S. Department of Labor and its local counterparts have consistently advised that wage and hour laws apply to all workers without regards to their immigration status.  For instance, the respective agencies in New York, California, and the District of Columbia specifically state on their websites that wage and hour laws protect “all workers, even undocumented workers” or “whether or not they are legally authorized to work in the United States.”  Furthermore, the U.S. Department of Labor affirms the above and specifically addresses the inapplicability of the Immigration Reform and Control Act (IRCA) to wage and hour cases under its jurisdiction.

In addition, employers are reminded that IRCA prohibits: (1) the knowing hiring of persons not authorized to work in the United States; (2) the continued employment of persons not authorized to work (though persons previously employed are not subject to these restrictions); and (3) the hiring of an individual without verifying or correctly documenting the person’s identity and eligibility to work legally in the United States (i.e. completing Form I-9).

In sum, a worker’s immigration status is not relevant in wage and hour suits and provides no defense in such suits.  Employers should also be mindful of complying with IRCA and I-9 rules regarding employment eligibility verification obligations.

Mintz Levin is presenting a webinar on Tuesday, April 9th to discuss the information you need to implement the new Form I-9. US Citizenship and Immigration Services published a new version of Form I-9 on March 8, 2013 along with revisions to its M-274: Handbook for Employers. This new Form I-9 must be used by all US employers starting on May 7, 2013. It is a longer form and includes expanded instructions.

To register, click here.

United States Citizenship and Immigration Services (USCIS) today published a revised Form I-9, Employment Eligibility Verification.  All employers in the U.S. are required to complete Form I-9 on behalf of every employee hired in the U.S. The new Form I-9 may be found at http://www.uscis.gov/I-9Central.

The revised Form I-9 is designed to minimize errors in completion through reformatting, clearer instructions, and the addition of new data fields, including the employee’s foreign passport information (if applicable), telephone number, and email addresses. Regulations concerning acceptable documentation, form retention, and employer sanctions have not changed.

Continue Reading USCIS Revises Form I-9 (Employment Eligibility Verification Form)