The Goldstein Law Firm’s Speakers Bureau; California Employers Face Increased Audits from Immigration Customs Enforcement

02/13/2012

The Goldstein Law Firm

February 2012 Newsletter

By: Charles H. Goldstein, Esq.

     Joseph A. Goldstein Esq.

“The Goldstein Law Firm’s Speakers Bureau; California Employers Face Increased Audits from Immigration Customs Enforcement over their I-9 Forms – What Employers Should and Should Not Do?; California Employers Are Experiencing More Challenges from Employees and Former Employees Who Claim Disability Discrimination under the Americans with Disabilities Act and California law”;  and Waiting for the California Supreme Court’s Landmark Decision in Brinker Restaurant Corp. v. Superior Court”

I.                   The Goldstein Law Firm Announces It 2012 Speakers Bureau:

Since 1977, The Goldstein Law Firm and its predecessor law firms have provided speakers, as a public service, to both private sector employers and public sector employers throughout the nation to speak on a variety of timely labor, employment, and business law topics. A list of speech topics is on our firm’s website at http://www.gpfirm.com. If you are a member of an employer organization that regularly invites speakers to your meetings or conferences and you wish to have a member of The Goldstein Law Firm speakers bureau speak to the members of your organization, please contact Mr. William Lam, Assistant to Charles H. Goldstein at (310) 553-4746 or by e-mail at cgoldstein@gpfirm.com.

 II.                California Employers Face Increased Audits from Immigration Customs Enforcement (“ICE”) over their I-9 Forms – What Employers Should and Should Not Do:

It is an open secret that a large number of undocumented workers are employed in California and that employers have often struggled with the problem of having a number of employees they suspect to be undocumented in their workforce. On many occasions, these undocumented employees presented documentation when they were hired that appeared on its face to be authentic. Afterwards, these individuals then filled out I-9 forms. Now employers who are not document experts are being audited by ICE and could face potential civil and criminal penalties as a result of these audits.

The United States Department of Justice, Civil Rights Division (“DOJ”) recently issued a list of “does” and “do nots” for Employers during ICE Audits that will be described below. One of the most fundamental of the “Does” that the DOJ does not list is to immediately call your employment lawyer and your employer immigration lawyer should ICE show up to Audit your I-9 Forms. Another “Does” that the DOJ does not list is to conduct your own comprehensive audit of the I-9 Forms to determine whether they are accurate and supported on their face with proper documentation.

Some “Does” the DOJ suggests:

  1. Develop a transparent process for interacting with employees during the audit, including communicating to employees that the employer is subject to an ICE audit.
  2. Provide all employees with a reasonable amount of time to correct discrepancies in their records identified by ICE as being deficient.
  3. If the employees are represented by a union, inform the union of the ICE Audit.
  4. Inform employees from whom you are seeking specific information to correct any deficiency found by ICE that you are seeking the information in response to an ICE audit.
  5. Communicate in writing with employees whom you seek information and describe the specific basis for the discrepancy and/or what information you need from them.
  6. Follow the instructions on the ICE notice and the instructions for the Form I-9 when seeking to correct Form I-9 defects, including the use of Acceptable Documents and the anti-discrimination notice.

Some “Do Nots” the DOJ suggests:

  1. Do not selectively verify the employment eligibility of certain employees based on their national origin or citizenship status based on the receipt of the ICE Notice of Inspection.
  2. Do not terminate or suspend employees without providing them with notice and a reasonable opportunity to present and provide Form I-9 documents.
  3. Do not require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain.
  4. Do not limit the range of documents the employees are allowed to present for purposes of the Form I-9.
  5. Do not treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.

The Goldstein Law Firm suggestions:

  1. Always comply in good faith with the requirements of the Immigration Control and Reform Act of 1986 (“IRCA”) and give your employees notice in your Employee Handbook that you will comply with IRCA.
  2. If you receive an ICE Notice of Inspection, have a comprehensive review of your Form I-9 documentation performed by a California State Bar Certified Immigration Specialist. If you do not know one, the State Bar of California and/or The Goldstein Law Firm can recommend a certified immigration law specialist.
  3. When you receive the ICE Notice of Inspection, immediately contact The Goldstein Law Firm because there are a number of employment and labor law implications that can arise from the aftermath of an ICE Notice of Inspection.
  4. Although undocumented employees cannot obtain unemployment benefits, they are still entitled to workers compensation benefits. Therefore, be aware that employees who lose their jobs as a result of an ICE audit may file for workers compensation benefits or seek compensation for unpaid wages and overtime. You should secure valid releases of these claims, where legally valid.
  5. Immediately contact The Goldstein Law Firm to assist you in taking cost effective steps to prevent claims of national origin discrimination and other forms of discrimination or to legally consult on a union organizing drive should you have to terminate an employee as a result of an ICE audit.

III.       California Employers Are Experiencing More Challenges from Employees and Former Employees Who Claim Disability Discrimination under the Americans with Disabilities Act and California law:

            Under the Americans with Disabilities Act (“ADA”) and California’s disability discrimination law, an employer is required to reasonably accommodate an applicant or an employee with a disability who is otherwise qualified and to reasonably accommodate the applicant or employee’s disability in a way that would allow them to perform the essential duties of the job required by the employer.

In many cases because of the broad definition of what constitutes a legally recognized disability, employers throw up their hands and accept medically imposed unreasonable performance restrictions that make it almost impossible for the employee to productively perform the essential duties of the job that they are being paid to perform.  Employers agree to “light duty” that becomes a permanent job in which the employer pays 100% of the employee’s wages but receives much less than the 100% performance of the essential duties for which the job was originally created. Some employers accept this situation out of fear that their workers compensation premiums will rise if the injured employee is off work and that the employee can gain some useful work from the employee if he or she is at work.  Returning employees to “make work jobs” that are unnecessary can cause serious morale problems in the work place and can cause more harm than good for the injured employee who is returned to work under these circumstances.

What are your basic legal obligations to a disabled, injured employee who wants to return to work?

  1. If the disabled employee is otherwise qualified you have a duty to reasonably accommodate the employee to perform the essential or necessary duties of their job or any other job that is open and available for which they are qualified.
  2. You have the legal obligation to engage in good faith in an interactive process to find a reasonable accommodation for the disabled employee to be able to return to work.
  3. In order to ensure that the disabled employee is able to return to work to perform the essential duties of their position or a position that is open and available for which they are qualified, you should request a “fitness for duty” examination. In order to have the right to perform a fitness for duty examination, you should have this requirement stated in your Employee Handbook, employment contracts and if applicable, your collective bargaining agreements with a union.
  4. Unless required by contract or applicable federal and/or state law, you are not obligated to terminate an existing employee to make a place to return a disabled employee to work.
  5. The “fitness for duty” examination should be paid for solely by the employer and provided by a health care provider who understands the essential duties of the job or jobs that the disabled employee is requesting to return to work to perform.

IV.             Waiting for the California Supreme Court’s Landmark Decision in Brinker Restaurant Corp. v. Superior Court

          One of the most perplexing issues and liability creators for employers in the “gotcha California wage and hour laws” are the provisions that relate to the requirement that employees be provided with rest and meal periods during their work day. The problem is that full and complete compliance with these laws can be impossible in many businesses that do not operate like a 1950s or 1960s factory where all of the machines were turned off during breaks and meal periods, and therefore employees were “effectively forced” to take their meal breaks and rest periods. Restaurants, retail shops, offices and many other businesses simply do not operate like these 1950s or 1960s factories.

In Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, which was filed more than three years ago, but finally argued before the California Supreme Court on November 11, 2012, the seminal issue is this:  Does an employer’s duty to provide meal and rest breaks to hourly employees also encompass the duty to make certain that hourly employees actually take their rest periods and meal periods at specified times; or is the employer’s duty to provide meal and rest breaks to hourly employees satisfied if the employer merely provides the opportunity for the hourly employees to take rest periods and meal periods and does not prevent these employees from taking these breaks? Certainly a decision which limits the employer’s duty to merely providing the opportunity for the hourly employees to take rest period and meal periods would be more practical to enforce and more realistic in today’s work place. Let’s keep our fingers crossed that the California Supreme Court’s decision will be a realistic and workable solution to the employer’s rest period/meal period conundrum.


The Legal Practice Areas of the Goldstein Law Firm

Employment Law     Wage and Hour Law     Labor Law     Shareholder Disputes

Business Litigation     Corporate Law     Corporate Investigations     Appellate Law

Wrongful Death     Training & Workshops     Workers Compensation     EDD Appeals

The Goldstein Law Firm

8912 Burton Way

Beverly Hills, California 90211

Telephone: (310) 553-4746

Facsimile: (310) 282-8070

cgoldstein@gpfirm.com

jgoldstein@gpfirm.com