Tanya N. Lewis Peters
February 2013
Regardless of the political issues currently swirling around immigration reform, it is important to have a grasp of basic immigration law principles when defending personal injury cases.
A few recent cases are illustrative of the effects that an undocumented worker’s status can have on claims of personal injury, plaintiff employment, or similar claims.
Hoffman v. NLRB, 122 S.Ct. 1275 (2002). In this case, the employer petitioned for review of, and the National Labor Relations Board (NLRB) cross-applied for enforcement of, an NLRB order awarding an undocumented worker backpay from date of his illegal termination until the employer discovered he was unauthorized to work. A panel of the Court of Appeals for the District of Columbia Circuit ordered enforcement. Following grant of a petition for rehearing en banc, the Court of Appeals again granted enforcement. On appeal, the U.S. Supreme Court, Chief Justice Rehnquist, held that federal immigration policy foreclosed the NLRB from awarding backpay to an undocumented worker who had never been legally authorized to work in the United States.
Madeira v. Affordable Housing Foundation, 315 F.Supp.2d 504 (S.D. New York 2004). Here, an injured undocumented worker’s status did not prevent him from recovering compensatory damages for defendants’ violation of New York’s Scaffold Law. His undocumented immigrant status was relevant to determining whether lost wages were appropriate and how much should be awarded.
Silva v. Wilcox, 223 P.3d 127 (Colo. Ct. App. 2009). Here, to the extent that a defendant is able to establish that a plaintiff immigrant is not authorized to be in the United States and has secured employment by violating the law or is in violation of the law in some other particular manner related to such employment, so that the plaintiff is unlikely to remain in this country throughout the period of claimed lost future income, the jury should be provided that information in determining whether to award damages for lost future wages.
During discovery, an attorney may wish to direct written discovery to the plaintiff that asks about citizenship and immigration status. During the deposition of a plaintiff believed to be an undocumented immigrant, potential questions to ask include: Are you a U.S. Citizen? Where were you born? What is your immigration status? Are you legally authorized to work in the U.S.? If so, how is that documented? Have you ever applied for Medicare or Medicaid? (Don’t assume they haven’t – a Medicare audit last year revealed that people living in the U.S. illegally had collected over $120 million in Medicare benefits as of 2012. This could trigger Medicare Secondary Payer Act issues in the future.)
You can also take the deposition of the employer. Always do this as a 30(b)(6), and always serve the notice as a Notice of Deposition Duces Tecum. You can also subpoena the documents beforehand using Rule 45. Ask them to provide a complete employee file, including hire documents. Define “hire documents” as the employment application, I-9 form, and any copies of documents inspected in conjunction with the I-9 form. (This is, of course, in addition to any wage loss documents you want to obtain, such as W2s, W4s, payroll information, etc.)
Using best practices in the handling and workup of these cases can minimize carrier/defendant exposure by putting you in the best position for pretrial motions, including motions in limine.
Of course, this raises the issue of what to do when defending a case and your client (defendant) is undocumented. For example, this problem arises when a driver hired by an employer turns out to be working illegally, and then causes an automobile accident while in the course and scope of his/her employment. First, try to exclude the defendant’s immigration status under Rule 401. Second, TXI Transportation v. Hughes, 306 S.W.3d 230 (Texas 2010) is extremely helpful. It held that neither the illegal immigrant status of a gravel truck driver, nor his use of a fake Social Security number to obtain his commercial driver’s license, was relevant to a negligent entrustment or hiring claim against the employer. It also held that the illegal immigrant’s status was inadmissible to impeach the driver’s testimony, and that erroneous admission of evidence relating to the driver’s immigration status was not harmless.
Employee Record Retention and Destruction
January 2013
The beginning of a calendar year is a good time for employers to review their document retention status. All employers should establish and maintain a clear record retention policy identifying the location of records, a reasonable schedule of retention and destruction, and a records administrator.
Documents related to employee recruitment and selection, such as job advertisements, resumes, job inquiries and records of refusal to hire should generally be retained for one year. 29 U.S.C. § 626; 29 C.F.R. § 1627.3 (Age Discrimination in Employment Act). Once an employee is hired, EEOC regulations require employers to keep all personnel or employment records for one year. If an employee is involuntarily terminated, his/her personnel records must be retained for one year from the date of termination. 42 U.S.C. §2000e-8(c); 29 C.F.R. §1602.14 (Title VII of the Civil Rights Act of 1964). Separate personnel files should be maintained for each employee.
Employers must maintain pay and promotion records for a period of three years, and must keep all records that would explain the basis for employee wages for a period of two years. (EEOC Recordkeeping Requirements). Additionally, employers must keep a copy of all employee benefit plans and merit systems while in effect and for at least one year after termination of the plan.
Documents related to employee leaves of absence under the Family Medical Leave Act (FMLA) should be retained for three years. 29 U.S.C. § 2626; 29 C.F.R. § 825.500. Remember to keep medical records confidential and separate from the employee’s personnel file. I-9 Employment Eligibility Verification forms should be retained for three years from the date the record was made or a personnel action was taken, whichever is later. 8 U.S.C. §1324a(b)(3) (Immigration and Nationality Act). I-9 forms should also be stored securely and separately from the employee’s personnel file.
This touches on a few, but not all, federal statutes governing document retention. These are general guidelines only, and exceptions may apply. Once an employer is aware of a potential lawsuit or charge of discrimination, employers cannot destroy records related to the subject matter of the complaint for any reason until complete resolution of the matter has been reached, including any appeals.
Contact Mark McCarty or Kallie Smith if you need more information on employee record retention and destruction policies and practices.
The «Gang of 8» Senators Release the Border Security, Economic Opportunity and Immigration Modernization Act of 2013
April 2013
After months of debate, negotiations and speculation, the «Gang of 8,» made up of eight Republican and Democratic senators charged with the task of composing an immigration reform bill, has released its much-anticipated proposal. On Wednesday, April 17, the 844-page bill (titled the «Border Security, Economic Opportunity and Immigration Modernization Act of 2013«) was filed in the Senate. The bill represents some significant compromises between the two major parties and reflects the changed political landscape surrounding immigration reform in the wake of last November’s election.
Here is a brief overview of some of the key provisions of the bill:
Border Security
The Department of Homeland Security must create, fund and implement a border security and fence plan. Within 10 years of the bill’s enactment, all employers in the United States must be using E-Verify. A visa exist system must be implemented at all international airports and seaports.
Jobs
The bill seeks to protect American workers from losing much-needed jobs to immigrants. The bill would not allow any work visas to be issued if the unemployment rate in a certain area is above 8.5 percent. Foreign students will get a «green card stapled to their diplomas.» The number of available H1-B visas will be nearly doubled. However, certain categories of family visas such as siblings and adult, married children of citizens will be eliminated.
The Guest Worker Program will be «modernized.» A new agricultural guest worker visa program will be established, which will allow some current undocumented agricultural workers to obtain legal status through an Agricultural Card Program.
Pathway to Citizenship
The bill proposes a long and arduous «pathway to citizenship» for the estimated 11 million people living in the United States illegally. No undocumented immigrant is eligible to apply for this temporary status until the border security measures are in place. Once the first security triggers are achieved, undocumented immigrants will be able to come forward, pass background checks, be fingerprinted, pay $2,000 in fines, pay taxes, prove gainful employment, and prove they have been in the U.S. since 2011, among other criteria. Those who have a serious criminal history or do not meet the above criteria will be deported.
Undocumented immigrants will not be eligible for federal benefits during this time, including benefits under «Obamacare.» Undocumented immigrants will have to prove they can support themselves and are not dependent on the government by verifying that they earn at least 25 percent above the poverty level and are gainfully employed.
Certain immigrants who were deported will be allowed to return to the United States if their spouse and children are still living in the United States.
The Dream Act
The bill contains a version of the Dream Act, which would allow young undocumented people whose parents brought them to the U.S. illegally or overstayed visas to be eligible for permanent residence in five years and citizenship immediately thereafter if they meet certain criteria.
The bill still has a long road ahead of it, and both conservatives and immigration reform proponents have already begun attacking the bill. However, many would agree that this is the closest the country has come in years to meaningful immigration reform. Let the debates begin!
Contact Barbara Melendez or Kristina Ruedas for more information.
Compliance with Immigration Law and the Value of an Independent Form I-9 Audit
February 2013
Over the last year, the national news has been populated with headlines addressing the fierce debate over immigration reform. Many may not realize that even before the 2012 presidential election, federal law enforcement agencies had begun paying increased attention to businesses’ compliance with immigration laws and regulations. In 2011 alone there were approximately 2,500 immigration-related audits of employee records, resulting in well over $6 million in administrative fines, and the number of audits performed each year is steadily increasing. The main targets for compliance auditing are the proper completion and storage of Form I-9s for every employee and the proper use of E-Verify to check employees’ immigration status. This article will discuss how the potential fines and disruption of company operations resulting from an audit can be greatly mitigated by conducting an independent I-9 audit before you are audited by the government.
The nation’s immigration laws and regulations apply to every U.S. employer, regardless of whether the employer employs immigrants or not, and the fines and penalties for violation of these laws will be assessed regardless of whether an employer employs immigrants. Every U.S. employer is prohibited from knowingly hiring an immigrant who is unauthorized to work or continuing to employ an immigrant once the employer discovers the immigrant is not authorized or is no longer authorized to work. The government only needs to establish the «knowing» element by a preponderance of the evidence, the easiest legal standard to meet, and knowledge will be inferred by notice of certain facts. An employer’s violation of immigration laws and regulations triggers substantial fines and penalties: between $375 and $3,200 for every incident of «knowingly» employing an immigrant not authorized to work (the fine increases for repeat offenders), between $110 and $1,100 for every failure to properly retain and present a Form I-9 for audit, debarment from federal contracts, and in some cases, criminal charges.
The Immigration and Customs Enforcement Agency («ICE») begins an I-9 audit of a company by presenting a «Notice of Intent» to inspect the company documents, which gives the employer 72 hours to gather the necessary documents and prepare for the audit. When ICE returns to the company after 72 hours, its officers demand production of Form I-9s for all current and terminated employees, a list of all current and terminated employees with hire and termination dates, copies of all quarterly wage and hour reports and/or payroll information for all current and terminated employees for the period of inspection, quarterly tax information, business information (valid licenses, etc.), proof of enrollment in E-Verify, and any communications with the Social Security Administration regarding mismatched identification numbers. Any delay in production of the above documents beyond the 72-hour period constitutes a violation of the retention requirements for Form I-9s.
ICE pursues companies regardless of size, industry, or geographic location. Oftentimes, these audits are triggered by a former or disgruntled employee who alerts ICE to possible infractions of the law. The availability of U visas, which grant legal status to immigrants who aid law enforcement and report crimes, also creates an incentive for some former employees to report possible violations of immigration law and regulation. Audits are taxing and expensive for a company that is not prepared to handle the audit expeditiously.
Because of the costs associated with government audits, measured in both potential fines and disruption of company operations, an independent audit conducted in preparation of a potential government audit has significant benefits. The purpose of an independent I-9 audit is to discover any evidence that could be used to fine the employer for «knowingly» hiring or continuing to employ an immigrant unauthorized to work; to recommend how to mitigate potential violations and keep current on best compliance practices; to check the efficiency of an employer’s re-verification system for I-9s; and to determine whether there is substantial evidence of an employer’s good faith efforts to comply with the verification system. An independent audit not only provides peace of mind for an employer, but also acts as a significant mitigating factor should a government audit reveal a mistake or inconsistency in documentation.
Please contact us for an internal review of your company’s immigration compliance or to address any other immigration or employment concerns.
Immigration Issues and Personal Injury Defense
Tanya N. Lewis Peters
February 2013
Regardless of the political issues currently swirling around immigration reform, it is important to have a grasp of basic immigration law principles when defending personal injury cases.
A few recent cases are illustrative of the effects that an undocumented worker’s status can have on claims of personal injury, plaintiff employment, or similar claims.
Hoffman v. NLRB, 122 S.Ct. 1275 (2002). In this case, the employer petitioned for review of, and the National Labor Relations Board (NLRB) cross-applied for enforcement of, an NLRB order awarding an undocumented worker backpay from date of his illegal termination until the employer discovered he was unauthorized to work. A panel of the Court of Appeals for the District of Columbia Circuit ordered enforcement. Following grant of a petition for rehearing en banc, the Court of Appeals again granted enforcement. On appeal, the U.S. Supreme Court, Chief Justice Rehnquist, held that federal immigration policy foreclosed the NLRB from awarding backpay to an undocumented worker who had never been legally authorized to work in the United States.
Madeira v. Affordable Housing Foundation, 315 F.Supp.2d 504 (S.D. New York 2004). Here, an injured undocumented worker’s status did not prevent him from recovering compensatory damages for defendants’ violation of New York’s Scaffold Law. His undocumented immigrant status was relevant to determining whether lost wages were appropriate and how much should be awarded.
Silva v. Wilcox, 223 P.3d 127 (Colo. Ct. App. 2009). Here, to the extent that a defendant is able to establish that a plaintiff immigrant is not authorized to be in the United States and has secured employment by violating the law or is in violation of the law in some other particular manner related to such employment, so that the plaintiff is unlikely to remain in this country throughout the period of claimed lost future income, the jury should be provided that information in determining whether to award damages for lost future wages.
During discovery, an attorney may wish to direct written discovery to the plaintiff that asks about citizenship and immigration status. During the deposition of a plaintiff believed to be an undocumented immigrant, potential questions to ask include: Are you a U.S. Citizen? Where were you born? What is your immigration status? Are you legally authorized to work in the U.S.? If so, how is that documented? Have you ever applied for Medicare or Medicaid? (Don’t assume they haven’t – a Medicare audit last year revealed that people living in the U.S. illegally had collected over $120 million in Medicare benefits as of 2012. This could trigger Medicare Secondary Payer Act issues in the future.)
You can also take the deposition of the employer. Always do this as a 30(b)(6), and always serve the notice as a Notice of Deposition Duces Tecum. You can also subpoena the documents beforehand using Rule 45. Ask them to provide a complete employee file, including hire documents. Define “hire documents” as the employment application, I-9 form, and any copies of documents inspected in conjunction with the I-9 form. (This is, of course, in addition to any wage loss documents you want to obtain, such as W2s, W4s, payroll information, etc.)
Using best practices in the handling and workup of these cases can minimize carrier/defendant exposure by putting you in the best position for pretrial motions, including motions in limine.
Of course, this raises the issue of what to do when defending a case and your client (defendant) is undocumented. For example, this problem arises when a driver hired by an employer turns out to be working illegally, and then causes an automobile accident while in the course and scope of his/her employment. First, try to exclude the defendant’s immigration status under Rule 401. Second, TXI Transportation v. Hughes, 306 S.W.3d 230 (Texas 2010) is extremely helpful. It held that neither the illegal immigrant status of a gravel truck driver, nor his use of a fake Social Security number to obtain his commercial driver’s license, was relevant to a negligent entrustment or hiring claim against the employer. It also held that the illegal immigrant’s status was inadmissible to impeach the driver’s testimony, and that erroneous admission of evidence relating to the driver’s immigration status was not harmless.