Florida Employment Law Blog : Florida Employment Lawyer & Attorney : Epstein Becker Green Law Firm : Immigration, Discrimination, Labor, FLSA : Serving Miami, Fort Lauderdale, Florida

On June 24, 2008, The House Appropriations Committee approved a U.S. Department of Homeland Security funding bill for $39.9 billion.  However, the bill also rejects an amendment to extend the federal electronic employment verification program or E-Verify.

The approved bill carries an increase of $2.2 billion from that of 2008. The amendment submitted by Rep. Ken Calvert (R-Calif.) extending the E-Verify program did not have enough votes at the committee level to pass. Without the extension, E-Verify is scheduled to expire November 30, 2008.

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Recent poll numbers showing Barack Obama with a substantial lead over John McCain have got me thinking about what an Obama victory would mean for Florida employers. 

The Employee Free Choice Act, which Obama touts in this campaign speech,

could have a major impact on Florida employers if enacted into law.  Currently most Florida employers in the private sector are union-free, in large part because Florida is a right-to-work state.  In particular, Article I, Section 6 of the Florida Constitution provides in part that "[t]he right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization."

The EFCA would not change Florida's status as a right-to-work state. But it would jump-start the growth of unions by amending the National Labor Relations Act to eliminate an employer's right to demand a secret ballot election in cases in which a majority of employees have signed union authorization cards and there is no evidence of illegal coercion. Under the EFCA, a secret ballot election would be held only if more than 30%, but less than a majority of employees sign union authorization cards.  The bill provides that "[i]f the National Labor Relations Boad finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative...." (emphasis supplied). 

Not surprisingly, the AFL-CIO supports the EFCA and summarizes the bill favorably on its web site.  But the Heritage Foundation argues that under the EFCA, "[w]orkers would never have the option of voting against union membership, and millions of workers could be forced into a union without ever getting the chance to vote on the matter." 

Another law that may be amended to be more employee-friendly under an Obama administration (if not sooner) is the Americans with Disabilities Act.  The Connecticut Employment Law Blog reports on proposed amendments to the ADA here. 

Stay tuned for further developments.

 

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I recently visited Nova University Law Library's microfiche room because my firm was litigating a tricky issue under  section 542.335, Florida Statutes, and I couldn't find the legislative history on Lexis, Westlaw, or even through a Google search.  (As you may know, section 542.335 is the statute that governs the enforceability of non-compete agreements and other restrictive covenants entered into between employers and their employees or independent contractors.) So, in an environmentally conscious effort to save you a trip to the library and conserve fuel, I am posting the legislative history here. 

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The Florida Civil Rights Act, unlike Title VII, does not prohibit pregnancy discrimination, according to a June 18, 2008 ruling by Judge John Antoon II, United States District Judge for the Middle District of Florida in Boone v. Total Renal Laboratories, Inc. (Case No. 6:08-cv-562-Orl-28KRS). Other courts have so ruled, though there is no unanimity of opinion on this issue. 

Here's the logic behind the argument that the FCRA does not prohibit pregnancy discrimination:  The Florida Human Rights Act (“FHRA”), which subsequently was reenacted and renamed the Florida Civil Rights Act, is patterned after Title VII. In General Electric Co. v. Gilbert, 429 U.S. 125, 136 (1976), the United States Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. Thus, the FHRA did not prohibit pregnancy discrimination, either. In 1978, the PDA amended Title VII to define the phrases “because of sex” and “on the basis of sex” to include disparate treatment of women due to the condition of pregnancy. In 1992, the Florida legislature reenacted the FHRA and renamed it the “Florida Civil Rights Act.” But these amendments failed to include pregnancy as a protected category. Therefore, the FCRA does not prohibit pregnancy discrimination.

By the way, your humble correspondent and his colleague, Jennifer Poole, successfully defended the Boone case.

UPDATE:  The Daily Labor Report featured this case in its June 23rd edition. 

FURTHER UPDATE:  Employment Law 360 reported this case in its June 26th edition.  A copy of the article can be read here. 

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A follow up to last week's post regarding the order issued by the Middle District of Florida, admonishing some of the leading wage-hour law firms in Central Florida for their routine failure to comply with the court's standing orders:  The National Law Journal is now reporting on this issue.  I can't reprint the article here, but it summarizes the firms' responses and contains a nice quotation from my partner, employment defense lawyer Mike Casey. 

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A decision by the Ninth U.S. Circuit Court of Appeals in San Francisco ordered this past Monday the reinstatement of 33 janitors in Los Angeles who were fired because their Social Security numbers did not match the government’s database. The janitors worked for Aramark Facility Services (“Aramark”) at the Staples Center in Los Angeles. After receiving “no-match” letters in 2003 stating that 48 employees’ Social Security numbers did not match the federal database, Aramark gave the employees three (3) days to clear up the problem. A number of them were able to fix their problems, but 33 could not and were fired.

The Ninth U.S. Circuit Court of Appeals’ decision states that "[G]iven the extremely short time that Aramark gave its employees to return with further documents and the arbitrator’s finding that Aramark had no “convincing information” of immigration violations, the employees’ failure to meet the deadline simply is not probative enough of their immigration status to indicate that public policy would be violated if they were reinstated and given back pay. Therefore, the district court erred and the award must be confirmed." (Aramark v. SEIU, June 16, 2008.)

Today’s issue of the San Francisco Chronicle states that the “decision by the Ninth U.S. Circuit Court of Appeals did not address the legality of the administration’s so-called no-match rule, which a federal judge [Charles Breyer] blocked in October. That rule would threaten employers with civil fines and criminal prosecution unless they fired workers who failed to clear up discrepancies between their Social Security numbers and government records. But in ordering the Los Angeles janitors rehired with back pay, the court said employees can’t be fired merely because the Social Security number they submit differs from the number in the government’s files - a major issue in lawsuits over t he administration’s plan."

Judge Cynthia Holcomb Hall, one of the most conservative jurists on the Ninth Circuit court, wrote the decision. In the decision Judge Holcomb Hall noted that Aramark’s three-day time limit given to the employees to resolve their no-match problems was much shorter than the timetable provided by the Bush administration’s proposal, which would give an employer 93 days to obtain a matching Social Security number from an employee before facing penalties for knowingly employing an illegal immigrant. This case could certainly have an impact in our state.

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As an economic recession looms (or are we there already?), employers that are considering a reduction in force would do well to review their potential obligations under the federal Worker Adjustment and Retraining Act ("WARN").  Several of my partners in New York who contribute to the New York Employment Law Letter have written a primer on the WARN Act, available here.  By the way, several states have "mini-WARN Acts" that apply to employers with fewer employees than those covered by the federal law.  But Florida is not among them. 

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The U.S. Department of Labor Employment and Training Administration, Office of Foreign Labor Certification (“USDOL”) recently issued further clarification on the role attorneys should play in the PERM process in light of Fragomen Audits. The key language of the clarification states:

“…given that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process, and respects the right of employers to consult with their attorney or agent during that process to ensure they are complying with all applicable legal requirements.

By prohibiting attorneys, agents, and foreign workers from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. 656.10 (b)(2)(i) and (ii), the Department does not thereby prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer, and not the attorney or agent, must determine whether a U.S. applicant’s credentials meet the minimum qualifications for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. After an employer evaluates a U.S. worker and concludes that the worker is unqualified, the employer may seek the advice of its attorney or agent to ensure that its reasons for rejecting the U.S. worker are lawful, and the attorney or agent may review the qualifications of the U.S. worker to the extent necessary to provide that advice. By contrast, if an employer evaluates a U.S. worker and determines that the worker is minimally qualified, the attorney, agent, or foreign worker may not thereafter consider the applicants’ qualifications and attempt to substitute his or her own judgment for that of the employer. In the Department’s view, an employer’s determination that a U.S. worker is minimally qualified for a position constitutes clear evidence that there are U.S. workers who are able, willing, qualified and available for the work to be undertaken. More specifically, the types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include:

• Attorneys and agents may receive resumes and applications from U.S. workers who respond to the employer's recruitment efforts; however, they may not conduct any preliminary screening of applications before the employer does so, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. The attorney or agent may not withhold from the employer any resumes or applications that it receives from U.S. workers.

• Attorneys and agents may not participate in the interviewing of U.S. worker applicants, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed. Such involvement, because of its uniqueness, has resulted in an impermissible “chilling effect” on the interests of U.S. worker-applicants in the position.

• After the evaluation of applications by the employer has been completed, the employer may consult with its attorney or agent about the implications of its qualification determinations on the labor certification application. Those consultations can encompass the question of whether applicants who were found by the employer to be unqualified were rejected for lawful, job related reasons. Under no circumstances, however, should an attorney or agent seek to dissuade an employer from its initial determination that a particular applicant is minimally qualified, able, willing and available for the position in question.

Where the Department finds evidence of potentially improper attorney, agent, or foreign worker involvement in considering U.S. worker applicants, the Department may audit applications to determine whether the employer’s recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements.”

In a certain sense this clarification is good because not only supports an employer’s right to consult with its lawyer, but also acknowledges that attorneys can play a very important role in the labor certification process. My concern is that USDOL will now attempt to either reduce further the role of the attorney or inhibit an employer’s ability to consult with its lawyer during the labor certification process. Further, USDOL statement at the end of its clarification could qualified as an announcement that it will initiate more investigations and audits.  Keep an eye on this, there will be more developments.

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On June 12, 2008, the U.S. Citizenship and Immigration Services (“USCIS”) announced that beginning on June 30, 2008 will issue Employment Authorization Documents (“EAD”) valid for two years. The new two-year EAD will only be available for individuals who have filed to become a lawful permanent resident (“LPR”) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (“8 C.F.R.”) but are unable to become an LPR because an immigrant visa number is not currently available. USCIS will also decide whether to renew an EAD for either a one or two year validity period based on the most recent Department of State Visa Bulletin.

Applicants who have an available immigrant visa number and who are filing for employment authorization under 8 C.F.R. Section 274.a.12(c)(9), USCIS will continue to grant EADs that are valid for one-year. USCIS may issue a two-year renewal EAD if the applicant’s immigrant visa availability date retrogresses (when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the applicant’s priority date and the Department of State Visa Bulletin.

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Last year I wrote about a new law that requires Florida employers with 50 or more employees to provide three days of leave to any employee who has been employed by the employer for three or more months, if that employee or a member of that employee’s family or household has been a victim of domestic violence.

That law, now codified at section 741.313, Florida Statutes, will be amended to include leave for "sexual violence" effective July  1, 2008 under House Bill 289 unless Governor Crist vetoes the bill.  A veto seems highly unlikely, as the new legislation is already being touted in this "Domestic Violence Digest" published by the Florida Department of Children & Families. 

The bill defines  "sexual violence" as that term is defined in section 784.046, Florida Statutes, "or any crime the underlying factual basis of which has been found by a court to include an act of sexual violence."  Section 784.046 defines "sexual violence" as "any one incident of:

1. Sexual battery, as defined in chapter 794;

2. A lewd or lascivious act, as defined in chapter 800, committed upon or in the presence of a person younger than 16 years of age;

3. Luring or enticing a child, as described in chapter 787;

4. Sexual performance by a child, as described in chapter 827; or

5. Any other forcible felony wherein a sexual act is committed or attempted, regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney."

In contrast, the existing statute defines "domestic violence" by reference to section 741.28, which defines "domestic violence" as  "any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." (emphasis added).

In other words, one key distinction between "domestic violence" and "sexual violence" is that the latter need not be committed by a family or household member.

Apart from adding victims of sexual violence as protected persons, the provisions of section 741.313 would remain the same under the new law.

 

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The Florida Supreme Court will decide whether the principal of a Miami Catholic school, who alleged that she was terminated for complaining that her immediate supervisor assaulted and battered her, has a claim under the Florida Whistleblower's Act. 

Yolanda Miñagorri, who was the principal of St. Kevin's Catholic school, alleges that in August 2005, her immediate supervisor, Father Jesus Saldaña, assaulted and battered her when he grabbed her by the arm and verbally threatened her.  She alleges that the Archdiocese of Miami subsequently terminated her employment in retaliation for her complaints about Saldaña's conduct. 

Miñagorri asserted a claim under the Florida Whistleblower Act.  Section 448.102(3) of the FWA prohibits employers from taking retaliatory action against employees who object to or refuse to participate in activities, policies or practices of the employer which are “in violation of a law, rule, or regulation.” 

However, in a March 2007 decision, the Third District Court of Appeals ruled that the claim was barred under the “ecclesiastical abstention doctrine,” which precludes courts from exercising jurisdiction where an employment decision concerns a member of the clergy or an employee in a ministerial position.  This doctrine is rooted in the First Amendment to the U.S. Constitution, which the U.S. Supreme Court has interpreted as placing matters of church government and administration beyond the purview of civil authorities.  The Third DCA noted that under the ecclesiastical absention doctrine, where a claim challenges a religious institution’s employment decision, the inquiry is whether the employee is a member of the clergy or serves a ministerial function.  The parties agreed that Miñagorri was a ministerial employee.  The Third DCA concluded that "allowing the whistleblower claim to proceed would especially run afoul of the First Amendment because the requested remedy of reinstatement would require the Archdiocese to employ Miñagorri, a concededly ministerial employee."

Now the Florida Supreme Court will decide whether the Third DCA was correct.  In her appellate brief, Miñagorri argues that "[t]he First Amendment to the United States Constitution does not create an absolute bar to civil court jurisdiction over employment disputes between religious institutions and their ministerial employees."  "Rather the courts must, on a claim by claim basis, examine each claim and its elements and determine whether the court will be required to interpret religious doctrine or whether excessive entanglement is likely to result. If the court finds that it will not be required to interpret religious doctrine and that excessive entanglement is not likely to result, the court must consider the claim."  In response, the Archdiocese argues that this type of inquiry is inappropriate, because "[a] religious institution has no responsibility to tell a civil court the reason why it terminated a ministerial employee."

I will follow-up to this post as soon as the Florida Supreme Court issues its decision.

UPDATE:  The Florida Supreme Court will not review the case after all.  In a short opinion issued on July 3, 2008, the Court determined that that "jurisdiction was improvidently granted," and accordingly, discharged its jurisdiction and dismissed its review of the case.

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The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council ("Councils") are proposing to amend the Federal Acquisition Regulation to require certain contractors and subcontractors to use the U.S. Citizenship and Immigration Services’ ("USCIS") E-Verify system as the means of verifying that employees are eligible to work in the United States. Government agencies affected by the proposed are the Department of Defense (“DOD”), General Services Administration (“GSA”), and National Aeronautics and Space Administration (“NASA”). The proposed rule states: "This rule proposes to amend the Federal Acquisition Regulation (“FAR”) to require that certain contracts contain a clause requiring that the contractor and certain subcontractors utilize the E-Verify System to verify employment eligibility of all newly hired employees of the contractor or subcontractor and all employees directly engaged in the performance of work in the United States under those contracts." Stay tuned, this is just the beginning.

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On June 9, the White House announced that President Bush had signed on June 6 an Executive Order (“the Order”) amending Executive Order 12989. The Order, an aggressive move to keep illegal immigrants out of the US workforce, requires contractors and others doing business with the federal government to use E-Verify (formerly known as the Basic Pilot or Employment Eligibility Verification Program). E-Verify is an electronic employment verification system run by DHS in partnership with the Social Security Administration, which permits participating employers to electronically verify the employment eligibility of newly hired employees. E-Verify is voluntary for private companies, but mandatory for government agencies. The Order, which will also apply to new hires initially, in time, will affect millions of workers working for federal contractors nationwide. 

One of the problems with the Order requirements is that E-verify has shown some critical flaws even when operating in a relatively small environment.  E-Verify is also problematic from a business perspective because errors in the Social Security database can lead to flagging legal residents and citizens.  The June 10th's issue of the LA Times states that "Chertoff said E-Verify cleared 99.5% of qualified employees automatically. But in 2006 the Social Security inspector general found discrepancies in 17.8 million records for citizens and legal immigrants that would create a "significant workload" to correct. Lawmakers and other critics warned that forcing the more than 200,000 federal contractors to join E-Verify could overwhelm the Social Security Administration and create havoc for legal workers. 'As the administration requires more employers and workers to move into E-Verify, it should at the same time ensure that the system does not impinge upon U.S. citizens' fundamental right to earn a living,' said Rep. Zoe Lofgren (D-San Jose), head of the House subcommittee on immigration. Firms doing business with the government risk losing their contracts if they break federal rules. Some business executives worry the new requirement could add expenses. 'There's concern about increased costs and delays in hiring brought about by inaccuracies in the database,' said Neal J. Couture, executive director of the National Contract Managers Assn. Timothy D. Sparapani of the American Civil Liberties Union argued that E-Verify was 'not real immigration enforcement' because the system could not detect applicants who used documents stolen from legal workers. He predicted the system would prompt more identity theft by illegal immigrants.' 'American workers' identities are essentially going to become a black market commodity,' Sparapani said."

The Order states that the basis for requiring government contractors to use E-Verify is that the “Order is designed to promote economy and efficiency in Federal Government procurement. Stability and dependability are important elements of economy and efficiency. A contractor whose workforce is less stable will be less likely to produce goods and services economically and efficiently than a contractor whose workforce is more stable.”  I find the government’s statement suspicious because the government, although it has failed time and time again, has tried on repeated occassions to push legislation or regulations that would impose a mandatory electronic employment verification program on all US employers. Further, the Order is presented as being designed to promote "economy and efficiency" along with "stability and dependability," but the reality is that there is nothing economic, efficient, stable or dependable about skilled and unskilled jobs that cannot be filled because there are not enough American workers readily available to work. 

Interestingly, employers in the health care business using the Medicare program, janitorial services providing services to courts, universities getting federal student loans for its students or grants for some of its projects and programs, companies in the defense industry, and even contractors serving food in cafeterias in any government agency will be considered government contractors and will have to comply with this order.

The government in its zeal for security and enforcement is failing to consider the true economic impact these measures will have on employers and consumers. Enforcing this type of order in the absence of immigration reform which could provide employers with helpful avenues could doom - against contrary government opinion - many efficient employers.  I am not sure how the government is going to enforce this Order, but for us in Florida enforcing these measures could have a long lasting negative effect.

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Here's an interesting show cause order from the Middle District of Florida addressing the "routine failure" of the leading Plaintiffs' wage-hour firms in Central Florida "to abide by the Court’s standing orders." 

Anyone who practices employment law in Florida knows that these firms handle an extraordinary number of wage-hour cases.  So it's no surprise they don't find the time to comply with the court's standing orders.  Stay tuned to see what sanctions, if any, the court takes against these firms. 

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On June 5, 2008, U.S. Immigration and Customs Enforcement (“ICE”) agents executed a federal search warrant as part of an ongoing investigation targeting an Imperial Valley-area farm labor contractor, arresting two of the company’s foremen on criminal charges and another 32 employees on administrative immigration violations. The warrant was executed at the business office of the locally-owned Boss 4 Packing company, a packing business in Heber, California that provides contract workers to the farming industry in the Imperial Valley. The two arrested company foremen were charged with federal criminal charges for misusing Social Security numbers to employ illegal alien workers. The 32 illegal aliens employed by Boss 4 Packing include a group of seven women and 25 men from Mexico and Honduras. So far, 18 have been repatriated to Mexico and 12 are being held as material witnesses in the ongoing Investigation. One underage worker has been turned over to relatives. The search warrant remains under seal and the investigation is ongoing.

This could very well have happened in Florida. So far in fiscal year 2008, ICE has made more than 3,700 arrests in connection with worksite enforcement investigations, including 850 involving criminal violations. In fiscal year 2007, ICE made more than 4,900 arrests in connection with worksite enforcement investigations, including 863 involving criminal violations. That represents a 45-fold increase in criminal worksite arrests compared to fiscal year 2001. In addition, ICE obtained more than $31 million in criminal fines, restitutions and civil judgments in fiscal year 2007 as a result of worksite related enforcement actions.

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This week, the House Immigration Subcommittee will hear comments and discuss the challenges and problems that mandatory nation-wide EEVS program could pose.

EEVS, a deeply flawed program, is the core center of the “SAVE Act.” The SAVE Act  was introduced in Congress in November of 2007 by Reps. Heath Schuler (D-NC) and Tom Tancredo (R-CO).

The EEVS proposal would require every employer in the United States to verify the employment eligibility of their workers through the EEVS database. More importantly, the EEVS proposal requires both citizens and non-citizens alike to obtain and present newly proposed documents such as a Social Security Card and Driver’s License that are compliant with the Real ID Act in order to work or continue working in the US. In practical terms, it means that everyone in the US would have to obtain “permission” from the government to get a job. Further, EEVS would require every person in America to carry a new and improved biometric Social Security card containing biometric information that could include fingerprints, retina scan and even, DNA. Unfortunately, the hopes of many government officials is that EEVS will serve as a magic solution to undocumented immigration.

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Comp time -- an arrangement that allows workers to take time off instead of, or in addition to, receiving overtime pay from a prior workweek -- has long been impermissible under the Fair Labor Standards Act for private sector workers.  A group of Republican lawmakers in Congress are aiming to change that through the “Family-Friendly Workplace Act" (H.R. 6025).  If passed into law, the bill would give employers the option of offering employees the choice of paid time off in lieu of cash wages for overtime hours worked.  Employees would be allowed to take up to 160 hours of comp time every year.  Employees would retain the option of choosing overtime compensation in the form of cash wages.  The primary sponsor of the bill is Representative Cathy McMorris Rodgers of Washington, who summarizes the proposed legislation in this press release. 

The FFWA would offer welcome relief to businesses and employees, who currently have no choice of "opting out" of the rigid time-and-a-half overtime rules prescribed by the FLSA. Undoubtedly many employees would prefer time off in lieu of cash wages.  And, giving businesses the legal option of offering employees this choice would enhance their ability to retain quality workers and remain competitive.  I use the phrase "legal option" because in my experience, some private sector employers already offer employees comp time, though it is not permitted under the FLSA.  What makes business sense is not necessarily lawful, especially when it comes to the FLSA. 

Stay tuned for further developments on this proposed legislation. 

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On June 2, 2008, the USDOL announced that all PERM Labor Certification Applications (“LC”) submitted by the law firm of Fragomen, Del Rey, Bernsen & Loewy (“FDBL”), the largest immigration firm in the nation, will be audited.

USDOL’s announcement states: “The department has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers. The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment because of improper attorney involvement in the consideration of U.S. worker applicants.”

I do not know what FDBL did or did not do, but I certainly take objection at USDOL’s decision, as a colleague stated, for “trying” FDBL in a press release. Such announcements should be reserved only for cases in which the USDOL has found the existence of wrongdoing.

In its announcement the USDOL also states that: “There is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers who have responded to recruitment required by the permanent labor certification program.” I could not disagree more or in stronger terms. It is wrong for an attorney to advise the employer not to hire a qualified U.S. worker, but USDOL regulations are clear as far as an employer’s right to receive legal counsel through the much confusing and convoluted PERM process. 20 CFR § 656.10(b)(1) states clearly that attorneys may represent employers throughout the process. As long as the attorney does not interview or consider the U.S. worker for the position, the attorney has not violated any rule. Through this announcement USDOL also appears wanting to restrict the open communication that must exist between an attorney and his client for purposes of legal representation.

But there is another point I wish to make. Many employers in their quest for the “easiness” of a mill application process and low attorney fees receive legal services which may cover the minimum application requirements, but that do not offer protection. The days of “easy” compliance are long gone; today’s immigration law is complex, always changing and confusing. The US government has become more active in enforcing immigration laws against employers. In response to 9/11, the government has increased security measures and electronic initiatives to address national security concerns. The increase in the government's immigration policies is manifesting itself in a resurgence of government audits and criminal investigations of US employers. Given these enforcement times we live in, employers would be better served by researching and hiring legal services that offer them safety.

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Between February 21 and 22 of 2007 three executives of Rosenbaum-Cunningham International, Inc. (“RCI”), a Florida-based national cleaning contractor, were charged with conspiracy to defraud the United States and to harbor illegal aliens for profit. They were also charged with evading payment of federal employment taxes.

The 23-count indictment charged that these individuals operated a cleaning and grounds-maintenance service that contracted with theme restaurant chains and hospitality venues throughout the United States and staffed the cleaning crews with undocumented foreign nationals. According to the indictment, the federal authorities charged the three janitorial company executives of embezzling more than $18.6 million by failing to collect and pay federal income, Social Security, Medicare and federal employment taxes on the wages paid to its workforce, hundreds of illegal immigrants from Mexico, Central America, and Haiti. RCI allegedly hired illegal immigrants, paid them in cash and never required them to provide identification or fill out job applications or tax forms.

RCI’s president, vice president and controller were arrested along with more than 200 of the Florida-based company’s employees at 64 locations in 18 states and the District of Columbia, in a sweep by Immigration and Customs Enforcement (“ICE”). The employees were arrested as they were starting or leaving their shifts. According to ICE leadership, the sweep resulted from a 20-month investigation conducted by ICE agents sparked by the arrest of an illegal alien in Grand Rapids, Michigan.

One of the most interesting aspects of this case is that RCI clients (2001-2005) included House of Blues, Planet Hollywood, Hard Rock Café, Dave and Busters, Yardhouse, ESPN Zone and China Grill. It appears there is no evidence that any of the companies were complicit. In the mean time, RCI has ceased operations as of February 22, 2007.

Until recently, employers who were targeted for a raid usually faced only civil fines and deportation of their illegal workers. However, since 2006, ICE has focused more and more on enforcing criminal penalties including felony charges that have lead to huge fines and asset seizures. Additionally, employers have been charged with criminal violations such as money laundering, alien harboring, illegal alien employment and wire fraud. The DHS has also stated that it hopes increasing the harshness of the penalties encourages employers to comply with laws against hiring illegal workers.

The years 2006 and 2007 have not only seen an increase in the scope of employer liability, but also an effort by the government to clarify employers’ duties when it comes to resolving discrepancies in an employee’s eligibility to work in the United States. Specifically, ICE proposed a rule in June 2006 that expanded the notion of constructive knowledge as it relates to an employer’s liability that is found to have hired illegal workers. It also described “safe-harbor” procedures for employers who receive a “no-match letter” from the SSA or DHS.

Related to the notion of constructive knowledge, there appears to be a trend towards seeking employer liability even where its contractors or sub-contractors hire illegal workers. Current regulations state that an employer who knowingly or with reckless disregard contracts to obtain the labor of an unauthorized alien will be considered to have hired the employee. Incredibly, in terms of raids already conducted by ICE, in spite of the many industries targeted by ICE existing in our state (i.e. construction, agriculture, hospitality, retail, etc.) Florida has not been an “active” place. We do not hear much about ICE in Florida. But, just as RCI, simply put, employers should not make the mistake of assuming that ICE will not come and raid them.  Employers should be prepared for when it comes. Our state has too many industries which are the focus of ICE’s interest. Given the focus on employer liability for hiring illegal workers, there are various ways employers can proactively protect themselves against not only government investigations and ensure compliance with potential new laws and regulations, but also from service providers who may be hiring undocumented workers. Employers cannot afford neglecting these important tasks.

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On April 24, 2008, the Department of Homeland Security (“DHS”) issued a rulemaking proposal that will require aliens subject to US-Visit to provide, upon entering and before departing from the US, biographic and biometric information to commercial air and vessel carriers at air and sea ports of entry.

US-Visit is part of a continuum of security measures that begins overseas and continues through a visitor’s arrival in and departure from the US. It incorporates eligibility determinations made by both the DHS and the U.S. Department of State. The proposed rule requires commercial air carriers and vessel owners and operators to collect and transmit this biometric exit information to DHS, in conjunction with passenger manifest information already being collected and submitted by the carriers. However, the DHS rule would not apply to small carriers and vessel owners and operators, or to general aviation.

DHS’ rule proposes a “performance standard” for commercial air and vessel carriers to collect the biographic and biometric information and to submit the information to DHS no later than 24 hours after air carrier staff secure the aircraft doors on an international departure, or for sea travel, no later than 24 hours after the vessel’s departure from a US port.

According to the proposed rule, carriers will collect the covered aliens’ biographic and biometrics prior to covered aliens international departure. The biometric information must be collected using a biometric collection device that meets the technical specification identified by US-Visit, which must comply with the Integrated Automated Fingerprint Identification System (IAFIS) Image Quality Specifications. The carrier will then package this personally identifiable information (“PII”) and transmit it to DHS, using standards provided by DHS. Data transmission will take place over an encrypted network between the carrier industry and DHS. The encrypted networks must comply with the standards set forth in the Interconnection Security Agreements (ISAs) required to be executed prior to external access to DHS systems. Once the PII is received by DHS, DHS will acknowledge receipt to the carrier.

Under the rule, carriers are responsible for the accuracy of the biometric data captured from the covered alien and any other transmitted data. Carriers will also have to collect the biometrics directly from the covered alien. Carriers will have to comply with DHS standards for the secure storage and transmission of the biographic and biometric information. Carriers will have to comply with the IAFIS Image Quality Specifications. Carriers will have to comply with DHS standards for purging their systems of PII secured for and transmitted to US-Visit. Carriers will also have to immediately notify the Privacy Officer of US-Visit in writing in event of unauthorized use or access, or breach of biometric departure manifest information. Needless to say, carriers will have to register their carrier system with DHS, and registration will be contingent upon compliance with standards guidance for carrier systems to be issued by DHS in conjunction with the Final Rule.

Along with all the above-imposed obligations, there is a major obligation the government does not seem to contemplate, and, as it would appear, not to care, the heavy economic burden imposed on the carriers to implement the requirements of the rule. Under the new rule carriers will have to invest millions of dollars in man-hours, programs, system, procedures and more.  Carriers will have to implement the requirements of the rule or simply cease to do business in the US. This particular rule deals an overwhelming negative economic impact on an industry already operating, generally speaking, at the brink of bankruptcy. Add to this, the fact that we live in a state with a complex economy that depends greatly on tourism, and in a country in “transition” with a weakening economy, which has partly resulted from the restrictive immigration requirements imposed by the government, the results are not difficult to foresee. 

South Florida is an important spot for tourist and business visitors, and investors from Europe, Middle-East, and especially from South and Central America. Our state economy depends a great deal on these foreign visitors. This particular rule may not only affect the carriers that bring them here, but will also have a negative effect on industries such as hospitality, banking, real estate, retail, and many others that depend on these visitors. Even further, these requirements would also be imposed along all Florida airports adding further delays and negative economic effects to the different local economies. From a Florida perspective, the new rule is not helping to demonstrate that we remain a welcoming state. DHS' proposed rule might implement a security measure that meets the requirements of the 9/11 commission, but the reality is that it deals another critical economic blunder to the carrier industry, and given its many air and seaports, to Florida as well.

DHS is presently accepting comments about this proposed rulemaking, which are due no later than June 23, 2008. DHS is also holding a hearing on Friday, June 13, 2008, from 9:30 a.m. to 4 p.m., EDT, at the Hyatt Regency Crystal City at Ronald Reagan Washington National Airport (2799 Jefferson Davis Highway, Arlington, Virginia, 22202).

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Florida law generally favors agreements to arbitrate, and a recent decision by the Fourth District Court of Appeals illustrates this principle.  In United Healthcare of Florida v. Brown (Case No. 4D07-4539, 4th DCA, June 4, 2008) (which you can find here), the court held that an employee was bound to arbitrate her employment-related claim (the opinion does not state what her claim was), because in 2000 she had signed her employer's Internal Dispute Resolution/Employment Arbitration Policy.  The policy, which had been implemented in 1999, required the employee to "resolve all employment-related disputes which are based on a legal claim through final and binding arbitration."  Interestingly, in 2002 the employer implemented a new, but similar, arbitration policy, which the employee did not sign.  Nevertheless, the Fourth DCA, evincing the judicial preference to enforce arbitration agreements, held that, having signed a 2000 acknowledgment that incorporated the 1999 arbitration policy, the employee was estopped from denying the validity of the new agreement.

Whether mandatory arbitration of employment-related claims is a good thing for employers is a debatable issue which I will address in future posts.  In the meantime, be advised that employers cannot require employees to sign an arbitration policy that would cover a pending EEOC charge.  An employee's refusal to sign an arbitration policy under these facts is protected activity, according to a January 2008 decision by the Eleventh Circuit Court of Appeals, Goldsmith v. Bagby Elevator, Case No. 06-14440 (11th Cir., January 17, 2008).

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The workers' compensation exclusive remedy doctrine bars common law causes of action for negligent hiring, retention, and supervision and for assault, battery, and rape arising out of the alleged sexual assault of a minor employee by a supervisor, according to Florida's Second District Court of Appeals in a recent decision, John Doe and Jane Doe v. Footstar Corporation. 

Joel Cooper and the plaintiffs' daughter worked at the same Footstar retail outlet, Cooper as a store manager and the daughter as a sales clerk. The plaintiffs sued Cooper and Footstar Corporation, claiming that he had assaulted and sexually battered their daughter in the course and scope of his employment with Footstar, and that Footstar had negligently hired, retained, supervised, and trained Cooper. The trial court entered a final judgment on the pleadings in favor of Footstar on the basis that the workers' compensation law barred the plaintiffs' claims.

The Second District Court of Appeals affirmed the dismissal, holding that "[t]here is no
exception to the exclusive remedy of the Florida workers' compensation law and this Court cannot create one under the facts of this case, as reprehensible as the conduct alleged by Plaintiffs appears to have been and as harsh as this result seems to be." 

The Footstar decision does not mean that sexual harassment claims are barred by the workers' compensation law.  As the court in Footstar noted, the Florida Supreme Court ruled in Byrd v. Richardson Greenshield Securities (1989) that sexual harassment claims, and common law claims arising from sexual harassment, are not barred. 

So why were the common law claims in Footstar barred? That's not entirely clear from the opinion, but my guess is that the claims were not related to sexual harassment.  In other words, the relationship between Cooper and the employee was most likely consensual, and a consensual relationship (even one involving a minor) cannot form the basis for a sexual harassment claim.

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