Sure, you’ve been feeling well (except for those few holiday pounds that you’re working on). Sure, you’ve been taking the stairs, well, mostly. But, are your employment policies keeping up with your fitness regimen? Are your first-line managers trained in the latest policy pitfalls? Sometimes, handbook or training “makeover” resolutions suffer the same fate as New Years’ resolution – they get lost in the press of day-to-day demands. Your employment attorney can’t help you with the latter, but we’d love to give your policies and training regimens a check-up! Here are a couple of current issues you may be overlooking.

ENHANCED IMMIGRATION AND WORK PERMIT ENFORCEMENT AND INTER-AGENCY COORDINATION

According to the Pew Research Center, in 2014 there were approximately 8 million undocumented workers employed within the civilian domestic work force. Those persons represent about 5 percent of all workers and unemployed actively looking for work.

Enforcement of immigration laws is vested within the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) arm. In 2015 ICE and the U.S. Department of Labor (DOL), which enforces the Fair Labor Standards Act wage and overtime regulations, announced their Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws, bringing greater coordination between the two enforcement agencies. That interagency group recently added as enforcement members the Equal Employment Opportunity Commission and the National Labor Relations Board. So, enforcement contact by any one of those agencies may result in an extended investigation of possible violations of immigration, equal employment, wage and hour or labor relations violations.

Additionally, President Trump has broadly made immigration a focus of his office. His 10-point plan focuses directly on enforcement of immigration laws including identification of undocumented persons working illegally in the U.S.

It is clear that ICE, the DOL and other agencies will step-up enforcement efforts under a Trump administration. Now is the time to make sure your I-9 screening and documentation policies are adequate. ICE has issued a new Form I-9 (see https://www.uscis.gov/i-9) that must be used for all workers hired after Jan. 22, 2017. Adequate training of hiring decision makers goes hand-in-hand with other efforts to ensure compliance.

EEOC NATIONAL ORIGIN DISCRIMINATION GUIDANCE

With national attention on immigration issues it would not be surprising if national origin claims increase. While these are the least-litigated claims within the Title VII realm (11 percent in 2015), the EEOC in November issued its first-ever revision of the relevant section of its compliance manual originally issued in 2002.

The new guidance defines unlawful national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.” Significantly in our view, discrimination on the basis of “citizenship” is also protected under the national origin rubric, potentially setting up complex decisions involving investigation and determination of the right to work status of immigrant workers. It is noteworthy, but not surprising, that using U.S. citizenship as a job requirement is unlawfully pretextual as disguised national origin discrimination.

As with other protected characteristics, discrimination due to a perception or belief that the target of discrimination was protected is unlawful even where that belief was, in fact, wrong. “Associational” protection applies to persons who do not come within the definition as a member of a “national origin group” but who allege they were discriminated against for identifying or acting with a protected person.

Claims alleging harassment on the basis of national origin (as broadly defined) comprised 37 percent of the national origin charges received by the EEOC in 2015. Harassment can result in employer liability under the familiar “hostile work environment” test set out in Meritor Savings Bank v. Vinson (1986) with respect to sexual harassment claims. Thus, workplace misbehavior that is so “severe or pervasive” that it “alter[s] the conditions of the individual’s employment” may result in liability where the employer has some responsibility for having allowed those incidents to occur without being adequately and promptly remedied. The EEOC guidance gives as an example a situation where person of Pakistani culture or nationality is repeatedly called a “camel jockey” or “the local terrorist.” As we know, whether such comments are offered in hostility or in jest, will not insulate the employer from the obligation to intervene.

Similarly, third-party discrimination such as refusal of services, or harassment of an employee, that is motivated by an employee’s true, or even misperceived, national origin, may also subject the employer to liability.

Any employment policy that implicates national origin must be specifically job-related, necessary and drafted to minimize their impact. For example, an employer may desire to make an employment decision based on a person’s lack of a strong foreign accent, which may be essential to avoid verbal miscommunications in stress situations such as in providing emergency medical care. That employer would have to show that the worker’s job requires “effective spoken communication in English” and that the worker’s accent would “materially interfere()” with their ability to communicate, according to the guidance.

Be ahead of the curve and not off the road when it comes to being up-to-date and prepared to address these issues!

About the Author:
David J. Houston is a Member of Dickinson Wright.  His practice emphasizes Labor and Employment Litigation, Commercial Litigation, and Labor-Management Relations.  His practice areas have been recognized in the 2018 U.S. News and World Report National Ranking Tier 2 – Litigation Labor & Employment, and Tier 1 Lansing, Labor Law – Employment.  Dave can be reached at 517-487-4777 or dhouston@dickinson-wright.com and you can visit his bio here.