The US Department of Labor recently announced that it is increasing the penalties associated with violations of several employment laws. The penalty increase applies to all penalties assessed after January 2, 2018 for violations that took place after November 2, 2015.
The increase in penalties applies to the following violations, among others:
||Old Maximum Penalty
||New Maximum Penalty
|Family Medical Leave Act
||Failure to post required FMLA notices
|Fair Labor Standards Act
||Willful or repeated violations the FLSA minimum wage and/or overtime provisions
|Violations of the FLSA child labor law provisions
|Violations of the FLSA child labor law provisions that result in serious injury or death
|Willful or repeated violations of the FLSA child labor law provisions that result in serious injury or death
|Occupational Safety and Health Act
||Violations of the OSHA provisions
|Willful or repeated violations of the OSHA provisions
|Failure to post required OSHA notices
|Failure-to-abate violations of the OSHA provisions
In addition to the above-listed laws, the DOL also increased the penalties for violations of several other laws, including the Employee Retirement Income Security Act, the Immigration and Nationality Act, and the Employee Polygraph Protection Act, among others.
For a complete table of the increased penalties, click here.
The U.S. Department of Justice (DOJ) recently issued a new rule that revises its regulations on Section 274B of the Immigration and Nationality Act (INA). These regulations prohibit unfair immigration-related employment practices. The new rule clarifies the standards for determining whether a prohibited practice has occurred.
Under Section 274B, employers are prohibited from:
- Discriminating against any individual who is authorized to work in the US with respect to hiring and firing because of the individual’s
- national origin, or
- citizenship status
- Note: This applies to employers with between 4 and 14 employees. (An employer with at least 15 employees is covered by Title VII.)
- Engaging in “unfair documentary practices” relating to verifying an employee’s work eligibility –e.g.
- Requesting that an individual present more or different documents than are required to establish work eligibility or
- Refusing to accept documents that reasonably appear to be genuine if done “for the purpose or with the intent of discriminating against” the individual on the basis of national origin or citizenship status.
- Retaliating against any person because he filed a charge alleging a violation, participates in the investigation of such a charge, or otherwise contests action that may constitute an unfair documentary practice or discrimination based on national origin or citizenship status.
Under the new rule, the DOJ has done the following to clarify ambiguities in the current regulation:
- Define “discriminate”: The new rule makes it clear that the employer’s intent to discriminate must be based on national origin or citizenship status in order to violate the INA.
Take home for employers
Employers must take steps to avoid discrimination in the hiring and termination process. Employees who have the power to hire and fire should be trained on avoiding any conduct during the hiring/termination that might be considered discriminatory under the amended regulations or under any other federal or state anti-discrimination law. In addition, employees who handle the Form I-9 completion should be trained to process these forms in in a manner that is consistent for all employees, regardless of citizenship or immigration status.
It is not so happy times at the “Happiest Place on Earth,” as recent events have shown that not even Mickey Mouse is safe from a mass discrimination complaint.
CNN has reported that at least 23 former employees for the Walt Disney Resort in Florida have filed complaints with the Equal Employment Opportunity Commission (“EEOC”) claiming that the Walt Disney Company discriminated against them because of their national origin.
The Basis of the Complaint
These former employees are all US citizens who claim they were replaced by subcontracted foreign workers and temporary work visa holders. These former employees were all employed by the Walt Disney Company in IT-related roles and were replaced by foreign workers on temporary visas who had been brought in from an Indian outsourcing firm. In addition, before their termination, these former employees claim they were required to train their replacements.
Status of Claims
At this time, these former employees have simply filed claims with the EEOC. In the coming months, the EEOC will investigate these claims and determine whether discrimination actually occurred. Following the investigation, the employees and/or the EEOC may choose to proceed with litigation against the Walt Disney Company.
Take Home For Employers
It may come as a surprise to employers not only that US Citizens can bring national origin claims against their employers, but such claims are on the rise. The EEOC enforces such violations as well as the the Department of Justice because national origin discrimination also violates the Immigration and Nationality Act. As a result, there are numerous government entities enforcing these violations at the state and federal level and employers should proceed with caution when “replacing” their workers with subcontracted workers on temporary work visas.
A recent ruling by the Office of the Chief Administrative Hearing Officer (the entity that has jurisdiction over cases arising under the Immigration and Nationality Act) serves as a warning to all employers that they need to make sure their procedures relating to Form I-9 completion are fully compliant with federal law.
In July 2015, a California company was ordered to pay more than $600,000 in fines for more than 800 immigration violations, primarily relating to Form I-9 deficiencies. The violations included:
- Failure to prepare or present Form I-9 for certain workers;
- Failure to timely prepare Forms I-9 for other workers;
- Failure to ensure that employees fully completed Section 1 of the Form I-9;
- Failure to ensure that the company representative fully completed Section 2 of the Form I-9 (entitled “Employer or Authorized Representative Review and Verification”) and/or
- Failure to ensure that the company representative fully completed section 3 of the Form I-9 (entitled “Reverification and Rehires”).
This case is just one of many recent examples of an employer facing high monetary sanctions for I-9 violations and underscores the importance of employers ensuring that their Form I-9s are prepared in a timely fashion, that the information provided on the Form I-9 is accurate, and that all required information is provided. In addition, employers must also make sure their Form I-9 records are properly maintained.