Expect More Government Investigations - the DOL and ICE Agree To Share "Notes" About Employers

The Department of Labor (DOL) and Department of Homeland Security (which includes Immigration Customs Enforcement—ICE) entered into a Memorandum of Understanding (MOU) on March 31, 2011. The purpose of the MOU is to help both agencies (DOL and ICE) share information in relation to their respective investigative efforts that is acquired during a government investigation involving an employer.  In short, ICE and DOL have formally agreed to share information that either agency acquires during their investigative process which will lead to more government investigations.  In the MOU, DOL specifically agrees “to assist ICE’s efforts . . . by providing ICE with timely and accurate information to allow for identification of overlapping enforcement activity.” Both agencies agree “to create a means to exchange information to foster enforcement against abusive employment practices directed against workers regardless of status.  ICE agrees to develop a means to refer to DOL information concerning violations of DOL’s civil work site authorities described in section III of this MOU.”

There has always been discussion that the DOL and ICE share information pursuant to a 1998 MOU that promoted shared interests. Now, however, there is official confirmation of this directive with the recent MOU.  The MOU serves as another example of the government stepping up their efforts to increase their information channels in relation to an employer’s I-9 and immigration compliance matters.  

Though ICE is formally agreeing to refrain from engaging in DOL and ICE investigations at the same time, employers should be aware that there are limited circumstances when dual investigations are permitted to occur.  These circumstances include instances relating to national security, protection of critical infrastructure, or a federal crime other than a violation relating to unauthorized employment. Even though the DOL and ICE have separate enforcement authorities, an overlap of their particular government initiatives will certainly be an issue.

For those employers with pending DOL wage and hour investigations, it is very important that employers not share more information to the DOL than necessary during the investigation. Specifically, employers should know how to comply with a DOL investigation while also limiting the information that is shared it in order to minimize exposure to immigration compliance liability if information is shared with ICE.  

It is also very important to know what employees might say during the investigative process. If an employee has already told you “red flag” information (anything relating to a fake name, fake documents, etc.) during their employment, it is likely he or she will tell that information to the DOL investigator if the employee is interviewed during the investigative process.  Because of this issue and other issues that might arise during a DOL investigation that can lead to a subsequent ICE investigation, it is important to take proactive steps now to ensure your company has the necessary immigration compliance practices and policies.  

The main takeaway for employers is to have proper workplace and immigration policies in place, know your workforce, and always engage your legal counsel in any government investigations. 

Daniel N. Ramirez is a named partner at Monty & Ramirez, LLP.  He is board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Contact Information:
Email: dramirez@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

How will a government shutdown impact immigration agencies?

With the deadline fast approaching, failure to resolve the budgetary deadlock in the House of Representatives could lead to a government shutdown starting Saturday, April 9th at midnight. Under the government’s official guidance, in the event of a shutdown, all but “essential” government functions are furloughed and not allowed to operate. Although details are currently not being made public, all government agencies are preparing contingency plans to determine which functions would continue and who would keep working.

If a shutdown occurs, how will immigration agencies be affected?

In a recent posting, the American Immigration Lawyers Association (AILA) reported the following:

USCIS: In response to similar threats in the past, USCIS officials stated that other than the E-Verify program, the agency would not need to shut down as it is funded by fees. However, at least one local office has indicated that it is working on its shutdown plan. As such, the suspensions of the agencies functions are not clear at this time.

DOS: If there is a shutdown, it is likely that the only visa issuance being done by DOS will be for diplomats and for “life or death” situations.

CBP: Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

EOIR: EOIR has been advised to "put its shutdown plans in place." As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

DOL: DOL is making plans for a possible shutdown. If there is a shutdown, DOL personnel will not be available to respond to e-mail or other inquiries. At this time, it is unknown whether iCERT/PERM would continue to function. However, because the systems require funding to run, it is reasonable to assume that they will not be available.

We will be providing updates as more information becomes available.

Sarah D. Monty is a partner and the lead immigration attorney for the immigration section at Monty & Ramirez, LLP.

Email: sdm@montypartners.com Telephone: 281-493-5529 Website: http://www.montyramirezlaw.com

To Assume or Not Assume? How the New ADAAA Regulations Make it Easier to Qualify as “Disabled”

In 2008, President George W. Bush amended the American with Disabilities Act (ADA) when he signed the ADA Amendments Act of 2008 (ADAAA). The ADAAA went into effect on January 1, 2009; however, the Equal Employment Opportunity Commission (EEOC) just issued its final regulations on the ADAAA on March 25, 2011. Under the ADAAA, it is easier for individuals seeking protection to establish a “disability” within the meaning of the ADA. The ADAAA also rejects several U.S. Supreme Court holdings and portions of prior EEOC ADA regulations. The new regulations are contained in a 40-page publication but the regulations all boil down to one point: Employers should assume an individual has a disability because the ADAAA makes it unlawful to discriminate, not just against individuals with an actual disability, but against anyone with a medical condition—whether actual, past, or perceived. When interpreting the definition and application of “disabled,” the ADAAA also rejects most ADA case law which took a restrictive view on who qualified as a person with disabilities.

Below are 5 tips on how to comply with the new ADAAA regulations:

1. Assume a person has an ADAAA “disability”. To comply with the new regulations, employers should err on the side of caution and assume a person has a disability.

2. Avoid “cat’s paw” liability. “Cat’s paw” liability is a legal term for the U.S. Supreme Court’s treatment of holding employers liable for the decisions influenced by lower management or supervisors who had unlawful motives. To avoid liability, inform your supervisors and managers that the ADA will cover more people than before. If in doubt, always encourage lower management to engage the human resources department or legal counsel.

3. Don’t challenge the employee’s disability. The new regulations provide for an exception to the “regarded as” coverage for “transitory and minor” impairments. A “transitory and minor” impairment is one that lasts or is expected to last for six months or less. However, to avoid allegations of discrimination and demonstrate good faith, the ADAAA wants you to engage the employee in an interactive process to provide reasonable accommodations. Therefore, employers will be judged not on their subjective belief of whether the medical condition was actual or perceived, but on whether the employer engaged in an objective interactive process to provide reasonable accommodations to the employee.

4. Review handbooks, practices, and train all managers regarding the ADA as amended, and its revised regulations in the ADAAA. The EEOC envisions accommodations to include changes in schedule (arrival/departure times or break times), swapping of marginal functions, the ability to telework, policy modifications (e.g., altering for an individual with a disability when or how a task is performed, or making other types of exceptions to generally applicable workplace procedures). In reviewing your policies, keep an eye out for policy provisions that call for “automatic” termination without an individualized assessment or consideration of reasonable accommodation options. In this new era of ADAAA compliance, making reasonable accommodation the cornerstone of an employer’s disability policies and practices will be the employer’s best defense strategy.

5. When in doubt, contact legal counsel. Brush up on your legal obligations concerning reasonable accommodations. Employers will need to consider providing reasonable accommodations in many more cases than in the past. Guidance from an attorney will help you comply with the ADAAA.

Jacob M. Monty is the founding and managing partner of Monty & Ramirez, LLP. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He is a member of the American Law Institute and named to Texas Super Lawyers in 2008, 2009, 2010 and 2011.

Email: jmm@montypartners.com Telephone: 281.493.5529 Website: http://www.montyramirezlaw.com/