1
“Seyfarth Shaw” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership). Seyfarth Shaw LLP
Immigration & Employment Issues in 2017 & Beyond
A Look Ahead into the Trump Administration
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Speakers
Christian J. RowleyPartner, Seyfarth Shaw LLPSan Francisco (415) [email protected]
Angelo A. PaparelliPartner, Seyfarth Shaw LLPLos Angeles (213) [email protected]
2©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
2
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Why SCCE Members Should Care about Immigration Law
Whatever guidance the [immigration]
regulations furnish to those cognoscenti
familiar with procedures, this court . . . finds
that they yield up meaning only grudgingly
and that morsels of comprehension must
be pried from mollusks of jargon. . . .
They should be so written as to be
comprehensible by intelligent laymen and
unspecialized lawyers without the aid of
both lexicon and inner-circle guide.
Kwon v. INS, 646 F. 2d 909
(5th Cir., 1981)
3
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Why SCCE Members Should Care about Immigration Law
• Form I-9 and the online E-Verify system
• Prohibition on employing unauthorized workers
• Antidiscrimination exposure (citizenship status, national origin, alienage, “document abuse,” and retaliation)
4
Federal immigration laws are deeply flawed, complex and largely unworkable for virtually all U.S. employers.
3
Enhancing Public Safety in the Interior of the United States
• “Enforcement priorities”
Protecting the Nation from Foreign Terrorist Entry into the United States
• “Travel ban 1.0 and 2.0”
Border Security and Immigration Enforcement Improvements
• “The wall”
Protecting U.S. Workers
• “Buy American and Hire American”
EXECUTIVE ORDERS
1 2 4 3
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 5
Libya
Yemen
IranIraq
Syria
Sudan
Somalia
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
7 Banned Countries
Affected population:
People born in a banned country
Dual citizens of a banned country
U.S. legal permanent residents born in a banned country
6
4
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Visa and Entry
Scrutiny
Elimination of Interview
Waiver Program
“Extreme vetting”
High collection
mode*
* e-devices & data
Longer processing
times
NSEERS expansion?
7
USCIS Processing Times: Changes and Delays
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 8
5
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
• H-1B / H-4 Spousal Work Permit Programs
• NAFTA and Treaty Visas
• Review of Reciprocity= “The immigration equivalent to a trade war”
Immigration Program Changes/Elimination
9
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
POLICY AND REGULATORY REVIEW
10
6
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
INTERIOR ENFORCEMENT AND ANTI-FRAUD
11
Immigration Policy Development
New corporate policies to
support affected
employees?
Proactive Immigration
Policy Review
Identifying affected
employees?
Investigation Preparedness
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 12
7
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Several Federal Departments Administer & Enforce the Immigration laws
Department of Homeland Security
• U.S. Citizenship and Immigration Services [including, the Regional Service Centers, Field Offices and Fraud Detection and National Security division],
• U.S. Customs & Border Protection [including ports of entry and the Border Patrol], and
• U.S. Customs & Immigration Enforcement [including the Office of International Operations, SEVIS , and E-Verify].
13
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Several Federal Departments Administer & Enforce the Immigration laws
Department of State (Bureau of Consular Affairs)
• Consular posts and embassies worldwide,
• Visa Office,
• Office of Public and Diplomatic Liaison, and
• Overseas Citizen Services
14
8
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Several Federal Departments Administer & Enforce the Immigration laws
Department of Labor
• Office of Foreign Labor Certification ,
• The Wage & Hour Division, and
• The Office of Federal Contracts Compliance Programs
15
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Several Federal Departments Administer & Enforce the Immigration laws
Department of Justice
• Office of Special Counsel for Unfair Immigration-Related Employment Practices
• Office of Immigration Litigation
• Office of the Chief Administrative Hearing Officer, and
• Executive Office for Immigration Review
16
9
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Workplace Enforcement
Develop and Enforce an Immigration Compliance Policy.
• Hire only authorized workers,
• Honor antidiscrimination rules,
• Discipline those who fail to comply, and
• Consider other best practices.
17
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Workplace Enforcement
Place Controls on Employment-Based Immigration Sponsorship
• Written justification to petition for work-visa or green-card benefits for each foreign worker.
• Centralize due-diligence and signature authority confirming facts stated in all immigration submissions.
• Require systematic record-keeping and compliance on posting and good-faith recruiting procedures.
18
10
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Workplace Enforcement
Add Immigration Protections to Vendor Contracts and Manage Vendor Conduct.
• Avoid risk of deemed co-employment and of taint from the vendors’ immigration violations.
• Make sure immigration letters for vendor employees are accurate.
• Require vendors by contract to adopt enforce their own immigration compliance policies, with contractual penalties imposed for noncompliance.
19
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Workplace Enforcement
Strengthen Global Mobility Management.
• It's not just about complying with U.S. immigration laws.
• Foreign countries' immigration statutes can be just as nasty when the rules are violated.
• Bad immigration press and sanctions in one country may spark a storm of brand damage around the world.
20
11
Trump Effect: Overall Impact on Strategic Planning and Growth
• Lack of predictability and uncertainty tied to an unpredictable federal administration and a governmentally-inexperienced politician/cabinet should provide us all with a “wild ride”
• The overall policy agenda appears to be generally pro-business but with some “conflicting signals” and policy gaps unaddressed or unclear
• Be wary and “on-alert” for Trump targeting (GM, Boeing, Lockheed, etc.)
• Republican “sweep” will drive some legislative progress and alignment (with stubborn minority faction): healthcare and tax reform on the “short list”
• Keep a close watch on the reaction of the states at a legislative level in 2017-2018
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 21
Executive Branch Agencies: Flipping the Switch
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 22
Immediate Changes Delayed Impacts
12
Regulations on the Chopping Block
• Trump: 1/23/2017- “Cut regulations 75% or more”
• Freeze on Pending Regulations
• Congressional Review Act
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 23
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 24
Policy Issues• Pay equity• Title VII and Sexual Orientation • Criminal background check guidance
Rescind• Revised EEO-1 form (replacement, timing)
General Counsel position vacant
EEOC–Initiated Litigation • Delegation of Authority – Revisit
– Level 1 -- To GC
– Level 2 -- To Regional Offices• Pending EEOC v. Cases
– Settlements
– Pulling the cases • Heightened Transparency of EEOC
litigation• New EEOC v. cases –less?
EEOC
13
EEOC Commissioners- D->RTransition by Mid-2017
• Victoria Lipnic, Acting Chair 1/25/17; term: 2010- July 1, 2020
– pay equity, harassment, people with disabilities • Chai R. Feldblum - 2010-July 1, 2018.
– people with disabilities, pregnancy accommodation, sexual orientation and transgender discrimination, harassment
• Jenny R. Yang - 2013- July 1, 2017. Former Chair until January 22, 2017.
– Retaliation, national origin discrimination, human trafficking, workplace harassment, EEO-1.
• Charlotte A. Burrows -2014 -July 1, 2019.
– DOJ employment litigation, tribal justice, voting rights, and implementation of the Violence Against Women Act
• Vacant spot – previously Constance Barker
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 25
2017-2021 Strategic Enforcement Priorities
• eliminating barriers in recruitment & hiring (ban the box, big data)
• protecting immigrant & migrant workers• equal pay• preserving access to legal system• preventing systemic harassment• emerging issues
– inflexible leave policies that discriminate against persons with disabilities
– accommodating pregnancy-related limitations
– protecting transgender persons from sex discrimination
– gig economy & persons classified as indept contractors
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 26
14
EEOC FY 2016 Charges of Discrimination
• Retaliation: 42,018 (45.9 percent of all charges filed) • Race: 32,309 (35.3 percent) • Disability: 28,073 (30.7 percent) • Sex: 26,934 (29.4 percent) • Age: 20,857 (22.8 percent) • Nat’l Origin: 9,840 (10.8 percent) • Religion: 3,825 (4.2 percent) • Color: 3,102 (3.4 percent) • Equal Pay: 1,075 (1.2 percent) • GINA 238 (0.3 percent)These percentages total more than 100 because some charges allege multiple bases
• 75,000 Pending charges
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 27
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Revised EEO-1 Report – Two Components
Component 1
likely to stay
• Current EEO-1• Counts of
employees by race/ethnicity and sex in each of ten job categories
Component 2
likely to go
• Aggregate compensation data and hours
• Organized by 10 EEO-1 categories
• 12 specified pay bands
28
15
Pay Equity Momentum
• Companies leading by example
– Pay gap metrics
• State and local pay equity legislation
– Massachusetts safe harbor for pay review & reasonable progress
– Abandoning prior pay as a basis to set pay
– Philadelphia
• OFCCP requirement of annual pay review
– Audits continue
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 29
EO 13672- LGBT Non-Discrimination Survives
• Signed in 2014 by President Obama
• January 31, 2017, White House statement continues this Executive Order
• Extends protections against discrimination based on sexual orientation and gender identity for employees of federal contractors
• But Religious Freedom Restoration Act (RFRA)- the government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability
• Transgender bathroom laws
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 30
16
Harassment
• EEOC’s Select Task Force on the Study of Harassment in the Workplace
– Found: Corporate training has had a limited effect on preventing workplace harassment.
– Report recommended measures including
� workplace civility training (What you believe v. what you do)
� bystander intervention
• Effect of New Administration and attitude toward harassment
– Trump, Acosta
• Another opportunity for business to lead- Inclusion, Human Values
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 31
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 32
• Director position vacant• Appointed by Secretary of Labor
Likely:• Budget/Headcount• Fewer OFCCP audits• Continued focus on Veterans• Job training? • Jurisdiction thresholds increased?• OFCCP eliminated?
OFCCP
17
Federal Contractors: Rescinding Executive Orders With Wide Ranging Impacts
• EO 13502: authorizes Project Labor Agreements for major federal construction projects
• EO 13658: minimum wage increased from $10.10 to $10.20 effective January 1, 2017
• EO 13665: pay transparency anti-retaliation requirements for federal contractors
• EO 13673: “Blacklisting” -Fair Pay & Safe Workplaces
� labor law disclosures/reporting and restriction on arbitration– currently enjoined;
� paycheck transparency requirements
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 33
Federal Contractors: Rescinding Executive Orders Impacting Union Organizing & Representation
• EO 13494: prohibits reimbursement to federal contractors for union avoidance expenses
• EO 13495: requires contractors on service contract projects to offer employment to employees of prior contractor (Hiring Practices Impact)
• EO 13496: requires contractors to post notice of employee right to unionize
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 34
18
Policy Issues• Browning-Ferris Joint Employment Policy• Preservation of Independent Business
Model
Rescind• Expedited Ambush Election Rule• Partial labor unit rule (specialty
healthcare)
Potential Legislation – Clarifying• Union access to workplace• Appropriateness of arbitration
NLRB
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 35
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 36
Rescind• Letter rule giving unions walk-a-round
rights on OSHA inspections• OSHA record-keeping rule (through
rulemaking)
Enforcement
DOL OSHA
19
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 37
• New Political Appointees
• New Priorities Established
• Flowing Down to Local/Regional Office Contacts
• Exempt Status
• 21st Century FLSA
DOLWage and Hour
Division
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 38
Omnibus Gig Economy Reform
Looking Forward
20
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Questions
Christian J. RowleyOffice Managing Partner
Seyfarth Shaw LLPSan Francisco(415) 544-1001
Angelo A. PaparelliPartner, Business Immigration Group
Seyfarth Shaw LLP(213) 270-9797
[email protected] www.seyfarth.com/Immigration
39
Thank You
©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 40
Top Related