Wednesday, March 1, 2017

Will Employment Law Protections for Undocumented Immigrants Survive under the New Regime?

With the new administration’s flurry of activities related to the broader enforcement of immigration laws, one issue looms large for employment lawyers---will undocumented immigrants still be protected from unlawful employment practices under various federal laws?  The answer today is far from clear.
Title VII of the Civil Rights Act of 1964, as amended (Title VII), protects “individuals” from unlawful employment practices, and does not distinguish between documented and undocumented workers.  In its Compliance Manual, Section 2, “Threshold Issues,” the EEOC opines that, “Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status.”
At least one court within the Fifth Circuit has expressed that “illegal aliens” would be entitled to protections under Title VII.  See EEOC v. Taqueria Rodeo de Jalisco, No. 4:11-cv-03444, 2012 U.S. Dist. Lexis 179552, *7 n.1 (S.D. Tex. Dec. 19, 2012).  The Texas court’s position is clearly at odds with the Fourth Circuit’s decision in Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 187-88 (4th Cir. 1998), wherein that Court found that the employer did not violate Title VII when it refused to hire the plaintiff, an undocumented alien, because to hold otherwise would be to “nullify IRCA [the Immigration Reform and Control Act], which declares it illegal to hire or to continue to hire unauthorized aliens.” 
The Fair Labor Standards Act of 1938, as amended (FLSA), protects “employees,” and in March 2014, the United States Supreme Court declined to review a decision by the Eight Circuit affirming a jury verdict for several undocumented workers for nearly $300,000 for FLSA violations.  See Jerusalem Café, LLC v. Lucas, 721 F.3d 927 (8th Cir. 2013), cert. denied March 10, 2014.  In its decision, the Eighth Circuit minced no words when it determined that, “The FLSA’s sweeping definitions of ‘employer’ and ‘employee’ unambiguously encompass unauthorized aliens.”
Fifteen years ago, the United States Supreme Court decided Hoffman Plastics Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), and held that, in connection with a finding that an employer committed an unfair labor practice under the National Labor Relations Act (NLRA), the Board could not award back pay to an undocumented worker because such an award would represent wages the individual could not legally have earned.  According to the Court’s majority, “awarding backpay in a case like this not only trivializes the immigration laws [specifically, IRCA], it also condones and encourages future violations…it would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.”  The Board did, however, impose other sanctions on the employer. 
Several recent developments may further impact these decisions and increase the level of uncertainty for employers.  First, in late February 2017, the Fifth Circuit reinstated H.B. 11, a Texas law which makes it a felony to encourage unauthorized immigrants to enter or remain in the country by concealing, harboring, or shielding them from detection.  See Cruz v. Abbott et al., No. 16-50519 (5th Cir. Feb. 23, 2017).  While the Court held that there is “no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes harboring that person from detection,” it is unclear whether and how this law applies to employers who knowingly employ and house unauthorized immigrants. 
Second, in January 2017, the White House issued two Executive Orders related to border security, which in turn resulted in two Memos from John Kelly, the Secretary for the U.S. Department of Homeland Security.  The Memos, in part, implement “new policies designed to stem illegal immigration and facilitate the detection, apprehension, detention, and removal of aliens who have no lawful basis to enter or remain in the United States.” 
These developments appear to contradict at least two of the Equal Employment Opportunity’s (EEOC’s) priorities in its Strategic Enforcement Plan for Fiscal Years 2017-2021 (SEP), including: (a) “protecting vulnerable workers, including immigrant workers, and underserved communities from discrimination”; and (b) “preserving access to the legal system.”  Notably, EEOC Acting Chair Victoria Lipnic recently commented that the SEP enforcement priorities would remain largely the same. 
In short, how can undocumented immigrants pursue their rights under the legal system in light of the administration’s determination to find and deport them?  And, what obligations do employers have in relation to the treatment of undocumented workers?  As with many employment issues, this one will more than likely be resolved by the courts.