The U.S. Government is Aggressively Criminally Prosecuting Employers Who Knowingly Hire or Continue to Employ Illegal Aliens

07/15/2010

The Goldstein Law Firm

June 2010 Newsletter

“The U.S. Government is Aggressively Criminally Prosecuting Employers Who Knowingly Hire or Continue to Employ Illegal Aliens”; “You Have an Employee With a Diagnosed or Undiagnosed Mental Illness Who Threatens Other Employees – What Can You Legally Do?”; and “A Wage and Hour Question That I am Often Asked”

By: Charles H. Goldstein, Esq.

I.          The U.S Government is Aggressively Criminally Prosecuting Employers Who Knowingly Hire or Continue to Employ Illegal Aliens – What  Should You Do to Protect Your Business

The Obama Administration’s official policy is to prosecute employers who knowingly hire and employ illegal aliens, rather conducting immigration raids. An example of the aggressive enforcement of this policy can be seen in the U.S. Attorney’s prosecution of an owner of a popular French Bakery in San Diego.  Specifically, the French Bakery is being criminally prosecuted for a number of felonies involving the bakery’s employment of illegal aliens that could lead to a significant prison sentence for the Bakery’s owner. The U.S. Attorney is also asking that the French Bakery, an otherwise respected and lawful business in the San Diego community, be seized by the government as the product of a criminal enterprise because the employer hired and employed illegal aliens.

            These are pretty drastic measures when it is no secret that hardworking and mostly Hispanic workers from Mexico, Latin and South America, many of whom may be undocumented, have been employed for many years throughout the California economy. The new federal immigration crackdown will affect all employers in California. Therefore you should review your current employment policies to make certain that you hire and retain employees who are entitled to lawfully work in the U.S.

Tips for Complying in 2010 With the Immigration Reform and Control Act of 1986

  1. Sign up for e-verify, the Federal Government’s Website that assists you in verifying whether the information a new employee submits as part of their I-9 Form is accurate.
  2. Do not ignore “no match” letters from the U.S. Social Security Administration that states that no social security number or record for the named individual exists.
  3. If you receive a “no match” letter for an employee, give the employee a reasonable period of time to produce documents and information that will allow you to verify their right to work in the U.S.
  4. Make certain that all newly hired employees fully complete I-9 forms within three (3) days of being offered a job and provide documentation that you believe in good faith supports their right to work in the U.S.
  5. Although, as a practical matter you are not a qualified document examiner and cannot determine whether the documents that you are presented are legally valid, you should carefully review the documents. If you suspect these documents to be false, you should act in good faith to request additional verification of the employee’s right to work in the U.S.
  6. Draft new policies that strictly comply with IRCA to make certain that you have taken all lawful steps to prevent hiring job candidates/continuing to employ employees who are not legally entitled to work in the U.S.
  7. Have your I-9 Forms for existing employees periodically reviewed and compared with your payroll and contractor records to make certain that your organization is in full compliance with IRCA.
  8. Should you be contacted by a law enforcement agency about your employment practices and the hiring/retention of employees who may be illegal aliens, immediately seek legal advice from your employment lawyer.

II.        You Have an Employee With a Diagnosed or Undiagnosed Mental Illness Who Threatens Other Employees – What Can You Legally Do?

A.        Mental Illness is a Recognized Disability That Must Be Reasonably Accommodated under Federal and State Law – What Do You do With an Employee Who Acts Out in the Workplace?

Under both Federal and California law, persons with mental illness are to be treated like persons with any other disability and cannot be discriminated against because of their disability. Employers are required to reasonably accommodation an employee with a mental illness who is an otherwise qualified employee.

However, California law does not clearly answer the question of whether a mentally ill employee who acts out in the workplace is subject to discipline for misconduct stemming from their disability. An employee named Wills worked for the Orange County Superior Court. She was bipolar and sent emails and made threatening comments to her co-workers.  The Court fired her for this conduct. Her lawyers are now challenging the discharge based on a claim that the Orange County Superior Court discriminated against Wills based on her bipolar mental illness.

B.        No Employer is Required to Give a Free Pass to a Mentally Ill Employee Who Violates Legitimate Workplace Conduct Rules and Threatens Co – Workers

The attorney for the Orange County Superior Court was quoted as stating: “no employer is required to give a free pass to an employee who violated legitimate workplace conduct rules and threatens her co-workers, even if the employee claims her threatening conduct is caused by her disability.”

The facts of this particular case are as follows: Wills was assigned to work as a clerk for video arraignments at the Anaheim Police Department detention facility. After Wills waited several minutes to be buzzed in, she told a police officer that she was putting him and another officer on her “Kill Bill list.” On a separate occasion, Will sent a ring tone containing profanity to a co-workers’ cell phone. While Wills said both exchanges were meant as jokes, not earnest threats, one of the officers said in a deposition that she feared for her safety and the coworkers who received the ringtone message claimed to be “shook up” by it.

Employees who suffer psychotic incidents that include bizarre delusions of persecution because they view their fellow employees as “enemies”, can create a combustible workplace environment that must be diffused by your managers.

At the trial level, the judge sided with the Orange County Superior Court and found that Wills was terminated for legitimate non-discriminatory business reasons.

While employers have a legal obligation to reasonably accommodate mentally ill employees, employers also have an overriding obligation to maintain a safe workplace for all employees. An employer must balance the natural tensions between these two laudable legal obligations.

C.        How Can Your Protect Your Organization from Liability When Dealing With Mentally Ill Employees

  1. People with mental illnesses, even in 2010, are often ashamed of their illness. Therefore, you may not learn of their illness until after the act that caused you to discipline occurs.
  2. If you learn that the employee attributes their misconduct to a mental illness, such as a bipolar condition, you have a right to insist that before returning the employee to work, he or she is examined by an appropriate health care professional to determine whether they are fit for duty.
  3. A mental disability does not excuse an employee who commits criminal acts or creates an unsafe workplace for fellow employees, customers and/or vendors.
  4. If you learn that a workplace violence incident occurred because the mentally ill employee had not taken their medication in proper dosages, or had not taken their medication at all, causing the employee to act out – this situation presents more difficult questions for employers. No one, including an employer, can insure that a mentally ill employee who properly functions in the workplace with proper medication, actually takes their medication.
  5. In my opinion, it is the responsibility of the employee to take their medication and should they act out in a way that disrupts the productivity of other employees and/or jeopardizes the safety of other employees – that employee is subject to discipline for their actions, up to and including termination, depending on the severity of their conduct.
  6. While employers and fellow employees should be understanding and sympathetic to a fellow employee’s mental illness, a mentally ill employee has a responsibility to themselves and to their coworkers to manage their illness by taking proper medication and to secure and attend professional counseling sessions.
  7. Managers should be trained to spot the tell tale signs of employees whose mental illness may lead to violence in the workplace; and how to deal with these issues without violating an employee’s rights under the federal and state disability discrimination laws and/or the employee’s medical privacy rights.
  8. Whenever you intend to discipline an employee who you believe or know suffers from mental illness, immediately secure legal advice from your employment lawyer.

III.       Wage and Hour Questions I am Often Asked:

I am often asked the following wage and hour question: “I have Assistant Managers who perform all of the duties of my Managers and I pay them a salary that meets the requirements of California law.  I want them exempt from overtime and all of the other requirements of the California Wage Order. My Assistant Managers in other states outside of California are exempt. Can’t you build up their job description to make them exempt?”

            First, California has special rules that relate to who is “exempt” from its Wage Orders. Second, a job title and even a job description that does not match the job duties actually being performed by the employee will not be determinative as to whether an employee is or is not “exempt” from the California Wage Orders. 

            From my 45 years of experience dealing with wage and hour cases, Assistant Managers usually do not exercise the type of authority to qualify them for the executive/managerial employee exemption. They usually do not spend over 50% of their time exercising the type of authority required for this exemption to apply. Therefore, the only exemption from the California Wage Orders that may be possible is the “administrative exemption”. To be exempt as an administrative employee, the work performed by that employee must be directly related to the management of the business or the general business operations of the employer and the employee must exercise discretion and independent judgment at least over 50% of the time with respect to matters of significance

A.        Independent Judgment and Discretion Factors

In determining whether an employee uses their independent judgment and discretion at least over 50% of the time, as required under California wage and hour laws, the following relevant factors include, but are not, limited to:

  1. Whether the employee has authority to formulate, affect, interpret or implement management policies or operating practices;
  2. Whether the employee carries out major assignments in conducting the operations of the business;
  3. Whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to the operation of a particular segment of the business;
  4. Whether the employee has the authority to commit the employer in matters of significant financial impact;
  5. Whether the employee has the authority to waive or deviate from established policies and procedures without prior approval;
  6. Whether the employee has the authority to negotiate and bind the company on significant matters;
  7. Whether the employee provides consultation or expert advice to management;
  8. Whether the employee is involved in planning long or short term business objectives;
  9. Whether the employee investigates and resolves matters of significance on behalf of management; and
  10. Whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.

 

B.        How to Protect Your Organization From Misclassifying Assistant Managers Under California Wage Law as Exempt Employees

 

  1. Have a legally protected audit of the position of Assistant Manager to determine whether that position is exempt from the California Wage Orders.
  2. In order for the audit to be protected from disclosure during litigation, the recent Costco decision by the California Supreme Court requires that the audit must be performed by your lawyer.
  3. Whether an employee is exempt under the administrative exemption requires not only a review of the job description for the Assistant Manager position, but also requires that interviews be conducted with all Assistant Managers to determine the actual job duties they perform on a day-to-day basis and the nature and extent of their exercise of authority, discretion and independent judgment.
  4. When in doubt treat your Assistant Managers as hourly employees subject to all requirements of the California Wage Orders.        

The Goldstein Law Firm

8912 Burton Way

Beverly Hills, California 90211

Telephone: (310) 553-4746

Facsimile: (310) 282-8070

cgoldstein@gpfirm.com