September 14, 2018 Labor and Employment Relations Association (LERA)

September 14, 2018 Labor and Employment Relations Association (LERA) Ashley K. Boothby THE KELMAN BUESCHER FIRM Denver, CO aboothby@laborlawdenver.com For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era. US Attorney General Jeff Sessions, 4/11/2017

Introduction The Lay of the Land The spectrum of immigration status Undocumented workers in Colorado The Immigration Reform and Control Act (IRCA) Federal/State Wage & NLRA Rights of Undocumented Workers Discovery of Immigration Status in Employment Litigation Retaliation Concerns I-9 Compliance and Discrimination Employer Enforcement and Workplace Raids under Bush, Obama, and Trump ICE Warrants and What Employers/Unions Can Do to Respond Questions

The Spectrum of Immigration Status(es) Undocumented No legal status [eg no visa] No work authorization Temporary status, eg: Temporary Protected Status (TPS) (USCIS designates certain foreign nationals as eligible for TPS if civil war, environmental disaster, etc. in home country) DACA recipients [??] U- or T-visa holders [victims of human/labor trafficking/other crime] Can obtain temporary work authorization Lawful immigrants (permitted to work) Includes both: Conditional permanent residents (have a green card, valid for 2 years) Lawful permanent residents (conditional permanent residents who receive extension of green card) Non-immigrants (here with legal status for a limited time) EG: H-2A, H-2B visa holders (agricultural visas) US citizens

The Lay of the Land: Undocumented Workers in Colorado Est. 200,000 immigrants living in CO are undocumented (1 in 3) Constitute large part of the low-wage workforce in CO Construction, landscaping, domestic services, child care, garment work, car wash attendants, etc. Immigration status, language differences, isolation, poverty, and the fear/risk of retaliation => uniquely vulnerable to wage theft, dangerous worksites, and other exploitative practices See Bindu Pinnaker, They See Us As Machines: The Experience of Recent Immigrant Women in the Low Wage Informal Labor Sector, PLoS ONE 10 November 24, 2015 1n [peer reviewed] (https://journals.plos.org/plosone/article/fil e?id=10.1371/journal.pone.0142686&type=pri ntable) DHS reports: 2016-2017: in CO, arrests up 20%, deportations up 145% (vs. two prior years under President Obama)

Lay of the Land: The Immigration Reform and Control Act (IRCA) Prior to the IRCA s passage in 1986, it was not illegal for: An individual to work in the US without legal status/work authorization An employer to hire undocumented workers IRCA, by contrast: Requires employers to determine employees were legally permitted to work Sanctions employers that: Fail to properly complete/maintain I-9 forms (with civil penalties/fines) Knowingly hire undocumented workers, including with civil fines and criminal sanctions (up to 10 years in prison for pattern and practice violations) Criminalizes the employee s OWN presentation of fraudulent documents to his/her employer.

*BASELINE RULE*: Despite IRCA, undoc. workers have the same fundamental labor rights, too! Fair Labor Standards Act (FLSA) and CO state wage/overtime laws: Apply to employees regardless of citizenship / work eligibility Undocumented workers eligible for backpay damages (i.e., those wages for actual work already performed) and damages for retaliation. BUT: they cannot receive prospective remedies (eg front pay/reinstatement), unless the employee later became authorized to work. National Labor Relations Act (NLRA): Undocumented workers are employees, can vote in union elections, collectively bargain, organize, and engage in concerted activity (even if no union) BUT: Hoffman Plastic Compounds v. NLRB, 535 U.S. 137 (2002): prospective remedies like reinstatement and backpay not permitted if undocumented Backpay in this context = wages for work never performed because of an illegal discharge

Discovery of a Plaintiff s Immigration Status INCREASINGLY COMMON to see Fed. R. Civ. P. 26 protective orders barring discovery of a plaintiff s immigration status especially in wage and hour context [T]he weight of authority clearly holds that a plaintiff s immigration status is irrelevant in an FLSA action. -- Reyes v. Snowcap Creamery, Inc., 898 F. Supp. 2d 1233, 1234 (D. Colo. 2012) (J. Martinez) (applying FRE 402; idea is that such discovery is not relevant to the underlying claim [given a worker s right to wages regardless of immigration status] OR any tangential relevance is outweighed by the prejudicial and/or in terrorem effect of such discovery) Growing body of case law holds that Courts may prohibit discovery of plaintiff/ employee s immigration status and related inquiries/proxies (tax returns, SSNs) **Worth thinking about whether this information is really necessary/relevant (particularly in determining liability) and about the costs of fighting a protective order

FLSA Retaliation & Immigration FLSA Retaliation Bar (29 U.S.C. 215(a)(3)): [I]t shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding. NOTE: an employee need to file a formal lawsuit or testify in a formal hearing, etc. to receive protection from retaliation Retaliation Consequences (29 U.S.C. 215(b)): Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate... including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.

Colorado Wage Claim Act & Retaliation Colorado Wage Claim Act Retaliation Bar (Colo. Rev. Stat. 8-4-120): No employer shall intimidate, threaten,** restrain, coerce, blacklist, discharge, or in any manner discriminate against any employee who has filed any complaint or instituted or caused to be instituted any proceeding under this article or related law or who has testified or may testify in any proceeding on behalf of himself, herself, or another regarding afforded protections under this article. Any employer who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars, or by imprisonment in the county jail for not more than sixty days, or by both such fine and imprisonment.

Implications of Both Retaliation Provisions Calling ICE or threatening to call ICE in the context of a wage case constitutes unlawful retaliation Requiring plaintiff to re-verify immigration status can constitute retaliation. Bartolon- Perez v. Island Granite & Stone, Inc., 108 F. Supp. 3d 1335 (S.D. Fla. 2015). Even defense attorneys CAN BE LIABLE!: Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017): Defense attorney held liable for FLSA retaliation because ten weeks prior to trial, he enlist[ed] the services of U.S. Immigration and Customs Enforcement to take [the plaintiff] into custody at a scheduled deposition and then to remove him from the United States. AND *EVEN THE TENTH CIRCUIT* SEEMS TO AGREE!!: Acosta v. Foreclosure Connection, Inc., -- Fed. App x -- (10th Cir. Aug. 15, 2018): Persuaded by the Ninth Circuit s reasoning in Arias v. Raimondo, Tenth Circuit held that the FLSA s anti-retaliation provisions reach beyond actual employers... [and] apply to any person regardless of whether that person is an enterprise engaged in commerce.

Practical Consequences of Retaliation = Increased Liability Retaliation can make employer liable for separate, black hole of punitive damages, including emotional damages: In granting employees the ability to enforce the antiretaliation provision on their own, Congress allowed them to recover not just wages and liquidated damages but also such legal or equitable relief as may be appropriate. 29 U.S.C. 216(b). As the Seventh Circuit has recognized, this is expansive language that should be read to include the compensation for emotional distress that is typically available for intentional torts like retaliatory discharge. Pineda v. JTCH Apartments, L.L.C., 843 F.3d 1062, 1064 (5th Cir. 2016).

Discrimination & I-9 Re- Verification IRCA requires employers to verify workers eligibility on an I-9 form w/in 3 days of hire. After this initial verification, an employer is required/permitted to re-verify work eligibility only in certain, limited circumstances To wit: the expiration of a work permit or a nonimmigrant work visa. 8 CFR 274a.2(b)(1). Federal law protects workers from discrimination based on citizenship or immigration status, national origin, or unfair documentary practices. 8 USC 1324b; INA 274B. Employers who engage in the following could be liable for document discrimination and subject to substantial civil penalties/fines: Requesting additional or different documents than are required to complete the I-9 form; Rejecting documents that reasonably appear to be genuine ; Requiring the re-verification of lawful permanent residents who present a green card with a future expiration date, even upon/after the expiration date of the green card. 8 C.F.R. 274a.12(a); and Asking to see employment authorization documents before an individual accepts a job offer. BUT: employers must reject documents that do not reasonably appear to be genuine, or if they have other constructive knowledge that the employee is not authorized to work. 8 CFR 274a.1.

Workplace Raids: General Background During a workplace raid, armed ICE agents will enter a workplace (usually brandishing a some type of warrant**) to question workers and arrest/detain any employees it believes are working in the US unlawfully ICE agents will typically seal off all entrances/exits, corral and interview ALL workers, search and seize documents and property, and disrupt the worksite sometimes for multiple days at a time. We can see how this kind of disruption might be undesirable for both employees and employers.

Employer Enforcement & Workplace Raids: A Short History PRESIDENT BUSH: 2003: ICE created as part of the Department of Homeland Security Enforcement priorities included many high-profile raids on large worksites; ICE frequently arrested workers for employment-related crimes like identity theft / document fraud (e.g. stolen SSNs) E.g.: 2006: Swift & Co (6-state raid), total of 12,000 workers detained; 1299 workers arrested and charged with employmentrelated crimes 2008: large slaughterhouse raided in Postville, Iowa; 400 workers arrested and charged with aggravated identity theft From 2003 to 2007, ICE increased officers dedicated to worksite enforcement raids sixfold

Employer Enforcement & Workplace Raids: A Short History PRESIDENT OBAMA: 2009: ICE announces shift in focus of its worksite enforcement division to the criminal prosecution of employers who knowingly hire illegal workers. Quadrupled paper raids (I-9 audits) of employers, which usually did not target employees or conduct on-site investigations and fines Businesses were fined $6.9 million in fiscal year 2010, up from $675,000 in FY 2008. Arrests from worksite raids for immigrationrelated offenses dropped by 70% (vs. end of the Bush administration) 2011: DOL/ICE deconfliction MOU ICE agreed it would not engage in workforce enforcement at a worksite that is the subject of an existing DOL investigation of a labor dispute. May 2016: MOU addendum w/the EEOC & NLRB, agreeing to the same commitments 2nd Term: Obama deported record numbers, but political outcry led him to prioritize the deportation of recent immigrants/those who had been convicted of a serious crimes

Employer Enforcement & Workplace Raids: A Short History PRESIDENT TRUMP: Under Trump/Sessions, renewed workplace raids; ICE announced it expects to quadruple or quintuple the no. of raids under Obama Slower ramp-up, but has already doubled # of raids in October May of 2017 (as compared to during all of 2016) EG: 1/2018 raid of six Denver-area 7-11 stores (100 total stores in US) 2/2018: 122 firms in CA targeted for raids, 212 arrested 6/2018: raid of Ohio meat supplier, 140+ workers arrested ICE has also stepped up collateral arrests at these raids ZERO TOLERANCE : DOJ has completely changed the priorities for removal to include any undocumented person who has been convicted of ANY crime (OR who has a pending criminal charge, including entering the country without work papers/use of false SSN) Fate of the MOUs is unclear; as of 2/2017, ICE spokesperson said they were still in effect.

ICE s Use of Administrative Warrants Two Types of Warrants ICE uses to conduct a worksite raid: I-205 Administrative Warrants Civil Search Warrants Issued Pursuant to the INA.

I-205 Administrative Warrants Reviewed & Signed Only By ICE (not a Judge; usually the ICE arresting officer) Names particular individuals adjudicated removable; ONLY THOSE individuals are subject to arrest under the warrant 1-205 Warrants are derived from the Immigration and Nationality Act (INA), 8 U.S.C. 1357, which authorizes any ICE officer, without a warrant, to interrogate any person believed to be an alien as to his right to be or to remain in the United States; and arrest any alien in the United States if he or she has reason to believe that the alien is in the United States illegally. BUT!: 1-205 warrants NEVER authorize entry to private property (including the private premises of an employer*) without the owner s CONSENT Many employers/unions do not know this; they simply assume that when ICE shows up brandishing what it calls a warrant, that they must open non-public areas of the workplace for inspection When they do so, employees are exposed to collateral arrests ; such arrests are approx. 60% of ALL ARRESTS that ICE agents make 1

Civil Search Warrants Signed by a Federal Magistrate Judge -- BUT, unlike ordinary criminal warrants, NO particularity requirement for probable cause (considered an administrative, not a criminal, search warrant) Specifically, Courts have applied a relaxed or hybrid standard of probable cause: Search warrant need not identify specific individuals to be arrested by name. It is sufficient that the search warrant identify the premises to be searched with particularity and be justified by evidence supporting a reasonable suspicion that unidentified unauthorized immigrants may be present there. A showing less than that required for criminal warrants was deemed appropriate because (1) Congress contemplated vigorous INS enforcement, including entries onto private premises to question aliens, and (2) INS activities are not analogous to a criminal investigation [because] e the employer faces no sanctions of any kind for employing illegal aliens. Int l Molders & Allied Workers Local Union No. 164 v. Nelson, 799 F.2d 547, 552-553 (9th Cir. 1986) (discussing Blackie s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1218 19 (D.C. Cir. 1981)).

Civil Search Warrants: Constitutionally Infirm & Predicated on Outdated Precedent IRCA created criminal sanctions: Employer felony penalties, including 10 years in prison, for pattern and practice cases. 8 USC 1324a. Worker felony penalties for presentation of fraudulent documents. 8 USC 1324c. AND, rising percentage of workers arrested in workplace raids are, in fact, being prosecuted criminally AND deported. 2002 = 5%; 2006 = 16%; Swift Raids = 18% Although this hasn t been litigated yet the idea that civil search warrants allow ICE to enter private workplaces is premised on the argument that this is just an administrative enforcement proceeding without attendant criminal consequences; no longer true in the post-irca, Trump era

So What Can The Union/Employers Do to Protect Themselves? Permissive Negotiation of Neutral Policies Generally Applicable to Workforce As A Whole: CBA provisions to notify all employees of receipt of any Notice of Inspection (I- 9s) or warrant from ICE CBA Provisions for leave time and reinstatement rights for employees with work authorization issues Employer policy providing there is no warrantless entry to non-public areas Employees sought in warrant or subpoena should be sent out of the private workplace to a public area to be arrested/receive process, so as to reduce collateral arrests Drafting a form letter expressing lack of consent to search, to have ready on hand, to present to ICE when it arrives with a warrant