Immigration & Employment Issues in 2017 & Beyond...Federal Contractors: Rescinding Executive Orders With Wide Ranging Impacts • EO 13502: authorizes Project Labor Agreements for

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“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

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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)

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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)

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Federal immigration laws are deeply flawed, complex and largely unworkable for virtually all U.S. employers.

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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

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©2017 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 5

Libya

Yemen

IranIraq

Syria

Sudan

Somalia


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

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Visa and Entry

Scrutiny

Elimination of Interview

Waiver Program

“Extreme vetting”

High collection

mode*

* e-devices & data

Longer processing

times

NSEERS expansion?

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USCIS Processing Times: Changes and Delays


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• 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

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POLICY AND REGULATORY REVIEW

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INTERIOR ENFORCEMENT AND ANTI-FRAUD

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Immigration Policy Development

New corporate policies to

support affected

employees?

Proactive Immigration

Policy Review

Identifying affected

employees?

Investigation Preparedness


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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].

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Department of State (Bureau of Consular Affairs)

• Consular posts and embassies worldwide,

• Visa Office,

• Office of Public and Diplomatic Liaison, and

• Overseas Citizen Services

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Department of Labor

• Office of Foreign Labor Certification ,

• The Wage & Hour Division, and

• The Office of Federal Contracts Compliance Programs

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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

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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.

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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.

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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.

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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.

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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


Executive Branch Agencies: Flipping the Switch


Immediate Changes Delayed Impacts

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Regulations on the Chopping Block

• Trump: 1/23/2017- “Cut regulations 75% or more”

• Freeze on Pending Regulations

• Congressional Review Act



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

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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


2017-2021 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


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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



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

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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


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


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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



• 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

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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


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


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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



Rescind• Letter rule giving unions walk-a-round

rights on OSHA inspections• OSHA record-keeping rule (through

rulemaking)

Enforcement

DOL OSHA

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• New Political Appointees

• New Priorities Established

• Flowing Down to Local/Regional Office Contacts

• Exempt Status

• 21st Century FLSA

DOLWage and Hour

Division


Omnibus Gig Economy Reform

Looking Forward

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Questions

Christian J. RowleyOffice Managing Partner

Seyfarth Shaw LLPSan Francisco(415) 544-1001

[email protected]

Angelo A. PaparelliPartner, Business Immigration Group

Seyfarth Shaw LLP(213) 270-9797

[email protected] www.seyfarth.com/Immigration

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Thank You


Immigration & Employment Issues in 2017 & Beyond...Federal Contractors: Rescinding Executive Orders With Wide Ranging Impacts • EO 13502: authorizes Project Labor Agreements for

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