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

Please join us for this informative seminar. Details below.

Quicksand for Employers:  Labor, Employment and Immigration Law Developments in the First Year of the Obama Administration   WHEN Friday, December 4, 2009 Registration: 8:00 AM Program 8:30 AM - 10:30 AM WHERE Miami City Club Wachovia Financial Center  200 South Biscayne Blvd., 55th Floor Miami, Florida         Presented by: Hector A. Chichoni, Esq., EpsteinBeckerGreen Kevin E. Vance, Esq., EpsteinBeckerGreen Mark J. Beutler, Esq., EpsteinBeckerGreen Join us for a panel discussion by immigration attorney Hector A. Chichoni and labor and employment attorneys Kevin E. Vance and Mark J. Beutler, all of EpsteinBeckerGreen's Miami office.  These panelists will discuss developments in immigration law and labor and employment law during the first year of the Obama Administration. Part I: Immigration law   A new administration and downturn in the economy have contributed to an ever-    changing and challenging year in immigration.   Mr. Chichoni will discuss the following immigration topics: The Obama Administration's immigration initiatives and programs The latest on the Department of Labor's strategy in PERM cases in this economy The trends in U.S. Citizenship and Immigration Services adjudication An H-1B cap analysis and Strategies for Fiscal Year 2011 Recent federal court cases and administrative decisions Responses to U.S. Citizenship and Immigration Services audits and Immigration and Customs Enforcement investigations The impact of continued state legislation Prospects for immigration legislation in the coming year Global immigration trends Part II: Labor and Employment Law Since the Obama Administration came into power, we have seen Congress introduce several employment bills that, if passed, would have a significant effect on business nationwide.  Also, the Department of Labor and the EEOC have already become more active under the Obama Administration.   Additionally, unions heavily supported Barack Obama in his presidential bid, and much of their support hinged on his backing of union-friendly initiatives, most especially the controversial Employee Free Choice Act (EFCA).  A political tug-of-war has left the National Labor Relations Board (NLRB) - the agency that referees labor disputes - deadlocked and unable to resolve some of the thorniest clashes between unions and management.  Since January 2008, the NLRB has had three vacancies and just two members - one from each party.  As a consequence, the Board has spent nearly two years putting off dozens of cases.  President Obama recently appointed three new members who, when confirmed, are expected to forge a new labor policy more hostile to the interests of employers.  Messrs. Vance and Beutler will discuss the following labor and employment law topics: The Lilly Ledbetter Fair Pay Act, which has already been passed and which will breathe new life into previously time-barred employment discrimination claims The Employment nondiscrimination Act, which seeks to include sexual orientation in the federal anti-discrimination law The Balancing Act of 2009 and similar bills that would mandate various forms of paid leave Increased activity and shifting priorities within the Department of Labor in several areas including workplace ergonomics and other employee health and safety initiatives, wage and hour enforcement, and whistleblower protections New appointments to the NLRB and their potential impact on the NLRB's agenda The potential reversal of employer-friendly NLRB decisions The EFCA, including the current political stand-off and the likelihood of a compromise; card check, fast-track union campaigns; mandatory arbitration of employer-union impasse on first contracts; and more stringent penalty provisions Recent pro-union executive orders affecting federal contractors There will be a short question and answer session following the discussion.  View Event Summary and Biographies     Register for Event   If you have any questions, please contact Anneliese Garcia at  305-579-3200 or email agarcia@ebglaw.com   About EBG: Founded in 1973, EpsteinBeckerGreen is a law firm with approximately 350 lawyers practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm’s size, diversity, and as a founding member of the International Lawyers Network (ILN), allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EpsteinBeckerGreen continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. For more information on EpsteinBeckerGreen, please visit www.ebglaw.com. For more than three decades, the EpsteinBeckerGreen seminar series has introduced senior executives, general counsel and human resources professionals to cutting-edge issues in nearly every area of business touched by law.

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One of my articles,  Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers, was recently published by ILW.  I am reproducing it here in its entirety for your perusal: 

"President Obama made it clear that his immigration plan, among other things, was to "remove incentives to enter illegally." However, the Obama administration has not provided any details as to how is going to accomplish this portion of its plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama administration has sent out "immigration signals" and U.S. employers should be prepared.

The most important of these immigration signals, perhaps, was Secretary Napolitano's appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration's plan. This is not only part of a well calculated move, but, as it would appear, the foundational step necessary to set President Obama's immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with clear enforcement views. She is one of the most experienced state executives in the nation in the immigration arena and one of the very few high ranking democrats qualified, should one be enacted, to handle a comprehensive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a "technology-driven border control" and the penalizing of employers hiring undocumented workers.

Secretary Napolitano has indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on "unscrupulous employers" rather than on undocumented workers. She has also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers "of unlawful workers are prosecuted for their violations."

Moreover, Napolitano has pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to "establish sound compliance programs that prevent unlawful hiring." She also aims to continue boosting manpower on the borders and the use of technology. At the same time, she has stated that her full intention is to enforce these methods in a fair manner across borders, ensuring that the law is applied. This, of course, represents a 180 degree shift from the Bush administration's approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecute employers.

In short, comprehensive immigration reform, whether in piece-meal or in one whole act, will be enacted. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the "DEA-type" actions with all their inefficiencies and social negative effects seen under the Bush administration. Under Secretary Napolitano, possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called ICE "inspections" will continue and, possibly, increase. Investigations conducted by the FDNS (Office of Fraud Detection and National Security) to detect, deter, and combat immigration benefit fraud to strengthen USCIS' goals and efforts will also increase. Technology based programs such as E-verify will rule and many could become mandatory for all U.S. employers. Immigration attorneys will be well served by advising their corporate clients to put their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order."

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President Obama made it clear that his immigration plan was to “bring people out of the shadows, improve our immigration system, create secure borders, remove incentives to enter illegally and honor our immigrant troops.” However, the Obama administration has not provided any details as to how it is going to accomplish this plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama has sent out “immigration signals” and employers should be prepared to feel the effects.

The most important of these immigration signals was Secretary Napolitano’s appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration’s plan. This is not only part of a well calculated move, but the foundational step necessary to set President Obama’s immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with strong enforcement views. She is one of the most experienced state executives in the nation with immigration and one of the very few qualified to handle a massive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a “technology-driven border control” and the penalizing of employers hiring undocumented workers.

Secretary Napolitano indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on “unscrupulous employers” rather than on undocumented workers. She also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers “of unlawful workers are prosecuted for their violations.” Moreover, Napolitano pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to “establish sound compliance programs that prevent unlawful hiring.” She also aims to continue boosting manpower on the borders and focusing on technology, such as ground sensors. At the same time, it is her full intention to enforce these methods in a fair manner across borders, ensuring that the law is applied.

This represents a 180 degree shift from the Bush administration’s approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecuting employers under the theory that actual convictions were hard to get.

In short, immigration reform, whether in piece-meal or in one whole swap, will be enacted in 2009 or 2010. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the “hyper-criminalized” actions conducted under the Bush administration with their inefficiencies and social negative effects.

Under Secretary Napolitano, DHS, the Immigration and Customs Enforcement, and possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called “inspections” will escalate. Technology based programs such as E-verify will rule and could become mandatory for every employer in the U.S. Wise employers will be served well by putting their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order.
 

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A few weeks ago I was quoted in Cindy Goodman's column in the Miami Herald on the issue of the gender pay gap.  There is a significant pay gap -- on average, women earn about 78% of what men earn.  But is the cause of the pay gap gender-based pay discrimination, i.e. women earning less than equally qualified men for the same work?  Or are other factors primarily responsible? I argued that women's choices -- the majors they choose in college, the jobs they apply for, and later, the child rearing choices they make -- are far more important than pay discrimination in creating the pay gap .

I caught some flak for my politically incorrect comments. But my comments were not off-the-cuff opinions -- they were based on the conclusions of numerous studies on the issue.  For example, take a look at the American Association of University Women's 2007 study, "Behind the Pay Gap," which is available online.  The study explains that women tend to go into fields like education, psychology and the humanities, which typically pay less than the fields men tend to go into, such as engineering, math and business. Women are also more likely than men to work for nonprofit groups and local governments. And, many women choose to leave the workforce or go part-time to raise families. When they re-enter the workforce in a full time capacity, they don't earn as much as men who continued working full-time all along.  The study concludes that only a small portion of the pay gap might be attributable to discrimination.

Still not persuaded that the pay gap is mostly the product of choices women and men make?  Read this article from Reason Magazine, in which Harvard economist Claudia Goldin is quoted as saying that there isn't evidence of systemic pay discrimination. "There are certainly instances of discrimination, she says, but most of the gap is the result of different choices. Other hard-to-measure factors, Goldin thinks, largely account for the remaining gap -- 'probably not all, but most of it.'"

Which brings us to the Paycheck Fairness Act.  The PFA would amend the Equal Pay Act to  "provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex," according to this summary of the bill from GovTrack.  One of the ways the PFA would accomplish this is to revise the "any factor other than sex" defense.  The summary states that the PFA:

Revises the exception to the prohibition for a wage rate differential based on any other factor other than sex. Limits such factors to bona fide factors, such as education, training, or experience.

States that the bona fide factor defense shall apply only if the employer demonstrates that such factor: (1) is not based upon or derived from a sex-based differential in compensation; (2) is job-related with respect to the position in question; and (3) is consistent with business necessity. Avers that such defense shall not apply where the employee demonstrates that: (1) an alternative employment practice exists that would serve the same business purpose without producing such differential; and (2) the employer has refused to adopt such alternative practice.

It's not clear how these new legal standards would play out in practice.  One thing is clear, though:  Employers would have a more difficult time defending cases of alleged pay discrimination brought under the Equal Pay Act.  

Proponents of the PFA argue that new legislation is necessary to close the pay gap. But because the pay gap is, for the most part, not the product of pay discrimination, the legislation would not close the gap significantly. Besides, Title VII and the current version of the Equal Pay Act, as well as state and local laws, already prohibit gender-based pay discrimination and impose significant penalties against employers that are found liable.  So it's hard to see why the PFA is necessary. 

What's the status of the PFA?  It passed the House in January and is currently pending in the Senate. If if it passes the Senate, there is little doubt that President Obama will sign it.  Stay tuned.

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If you could ask ask the Presidential and Vice Presidential candidates one question about employment law, what would it be?  Dan Schwartz, the author of the Connecticut Employment Law Blog, came up with this idea, as well as some excellent questions for the candidates.

I haven't researched all of the candidates' positions on employment law issues (does Palin have any?).  Still, I would want to ask Obama this: 

"You've said that you support the Fair Pay Act of 2007, which would give the EEOC the task of ensuring that men and women are paid equally for "equivalent" jobs. "Equivalent jobs," according to the legislation, "means jobs that may be dissimilar, but whose requirements are equivalent, when viewed as a composite of skills, effort, responsibility and working conditions." Isn't the Fair Pay Act of 2007 really an attempt to revive the concept of "comparable worth?" And do you really believe that the federal government is better than the free market in determining what a job is worth?"

Okay, that's two questions.  But they're important.  This article from Fortune Magazine explains why the Fair Pay Act of 2007 is based on unfounded assumptions about the reasons that women earn less than men.  (Hint: for the most part, the disparity is not caused by employment discrimination.)  The article also explains how intrusive the EEOC would have to be to enforce the Fair Pay Act : 

Under [the Fair Pay Act's] provisions, the Equal Employment Opportunity Commission (EEOC) would create criteria determining whether a given job is dominated by one sex; employers would have to send the EEOC every year a listing of each job classification, the race and sex of those holding such jobs; how much they are paid; and how such pay was determined. The goal of all this is to ensure that people in "equivalent" jobs are paid similar wages. "The term, 'equivalent jobs', according to the legislation, "means jobs that may be dissimilar, but whose requirements are equivalent, when viewed as a composite of skills, effort, responsibility and working conditions." And who would decide what is equivalent? The federal government, of course. Forget the price signal: Congress is on the job! 

If you think employers are already burdened by government's regulation of the workplace, just wait for an Obama administration.  You ain't seen nothin' yet. 

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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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