Immigration Law Violations Occurring After November 2, 2015 Carry Heavier Penalties

Effective August 1, 2016 the Department of Justice is assessing higher penalties for employers that violate immigration laws. These penalties cover violations that occurred after November 2, 2015.  Specifically, the DOJ’s interim final rule increases penalties for a myriad of violations, including penalties for employing unauthorized workers and for technical Form I-9 paperwork violations. These increases are driven by the Civil Monetary Penalties Inflation Adjustment Final Rule which directs federal agencies periodically to increase their administrative penalties to account for inflation. With this increase, the minimum penalty for unlawfully employing a single unauthorized worker will increase from $375 to $539, and the maximum increases from $3,200 to $4,313. These fines apply to the employer’s first offense. For each additional offense, the penalty increases significantly and tops out at $21,563 per unauthorized worker.

The increases in penalties for Form I-9 paperwork violations are similarly stiff. The interim final rule increases the minimum fine from $110 to $216 per I-9 violation, and the maximum penalty increases from $1,100 to $2,156 for a single violation. Fines for I-9 paperwork violations are independent of any unlawful hiring violation. Since the I-9 fines apply to each discrete technical violation and increase with each additional offense, a growing business whose I-9 compliance process is out of compliance could face tens of thousands of dollars in fines if audited by Immigration and Customs Enforcement (ICE).

In addition, the U.S. Department of Labor will also increase penalties for H-1B visa related violations. For example, misrepresenting material facts on the Labor Condition Application now carries a maximum penalty per violation of $1,782. In addition, an employer that displaces a U.S. employee in the period starting 90 days before and ending 90 days after it files an H-1B visa petition faces a maximum penalty of $35,000 to $50,758 per violation, if it does so in conjunction with certain willful violations.

Although these increases are touted as merely keeping pace with inflation, they are problematic for employers that have a poor track record of either ensuring their new hires are authorized to work in the U.S. or completing I-9 paperwork accurately for their new hires. Since these new penalties apply to violations that occurred as far back as November 2015, many in the employer community suspect that ICE has been delaying issuing fines for older violations until now, to recover the higher penalties. Also it is reasonable to anticipate that workplace audits will increase in number since ICE now has greater financial incentives to find employers out of compliance.

An audit with the assistance of counsel allows employers to detect and potentially correct any I-9 or other immigration compliance issues. It can also help to train the personnel responsible for immigration compliance, preventing errors in the future. For further information regarding how the ICE regulatory environment affects your business, recruiting, and hiring, and assistance with auditing your Form I-9 process, please contact Patrick W. McGovern, Esq., the Director of our Immigration Law Practice Group, at 973-535-7129 or pmcgovern@nullgenovaburns.com.

Allison Benz, a recent summer associate at Genova Burns LLC, assisted in the preparation of this blog post.

Transgender Accommodation Issues at the Forefront of Employment and Education

Earlier this month, the Equal Employment Opportunity Commission (EEOC) released a new Fact Sheet, announcing its formal position on bathroom access rights for transgender employees.  The Fact Sheet provides employers with a nuanced look into what practices and procedures the EEOC will be investigating should a charge be brought alleging sex discrimination in the context of bathroom usage by transgendered individuals.

As noted therein, the EEOC defines the term “transgender” as referring to “people whose gender identity and/or expression is different from the sex assigned to them at birth,” and specifically notes that “[a] person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.”

The EEOC reiterates that it enforces Title VII of the Civil Rights Act of 1964 in instances of discrimination against transgendered individuals, as Title VII prohibits employer discrimination on the basis of sex where the action is “motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.” The EEOC also noted that employers cannot and should not rely on state laws contrary to this guidance.

Bathroom Access Rights for Transgender Employees Under Title VII

The EEOC’s interpretation of “transgender” in the context of Title VII and bathroom usage is based upon two cases before the EEOC: Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012) and Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), as well as a recent opinion from the Fourth Circuit in G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016).

Lusardi held that prohibiting equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination.  Further, in Macy, the EEOC noted that an employer cannot avoid the requirement to provide equal access to a common restroom for transgender employees by providing single-user restroom access instead.  However, the EEOC advised that an employer can make single-user bathrooms available to all employees who might choose to use them. In G.G., the U.S. Court of Appeals for the Fourth Circuit followed the Department of Education’s position that sex discrimination under Title IX is prohibited and that educational institutions are to give transgender students access to bathrooms and locker rooms consistent with their gender identity.

In the Fact Sheet, the EEOC reaffirms its position that any state law to the contrary of these decisions and interpretations is not a defense under Title VII.  Thus, employers would be wise to update their policies and procedures to conform with the EEOC’s directives as to transgendered individuals, rather than look to their resident state for guidance.

Transgender Access to School Bathrooms

On May 13, 2016, President Obama issued a directive that requires every public school to provide appropriate access for transgender students or risk the loss of federal funds. The directive has received strong backlash from conservative leaders who have accused the President of blackmailing and the federal government of getting involved in local issues.

On the same day, the Department of Education and the Department of Justice (“the Departments”) issued a Dear Colleague letter to assist in ensuring that transgender students can “enjoy a supportive and nondiscriminatory school environment.” Although the joint letter does not carry force of law, the intent is clear: schools must agree or lose federal funding.  Specifically, schools must agree that that it will not exclude, separate, deny benefits, or otherwise treat students differently on the basis of sex in its educational programs or activities unless Title IX so authorizes. Schools are required to treat transgender students according to the gender that they identify as soon as a parent or guardian notifies the district that the identity is different from previous records.

Much like the EEOC guidance pertaining to employers, the Departments do not require a medical diagnosis or treatment as a prerequisite to be considered transgender; they also explicitly state that accommodating the discomfort of others cannot be justified by excluding or singling out a particular class of students. The Departments provide specific guidance on sex-segregated activities and facilities and reiterate that schools may provide separate facilities (including housing) but must allow transgender student to access those which align with the gender that which the student identifies. Records must be kept consistent with the gender that which the student identifies with as well. There are some limitations. The Departments note that non-vocational elementary and secondary schools and private undergraduate institutions are permitted under Title IX to set their own sex-based admissions policies.

New York City Commission on Human Rights’ Transgender Guidance

On May 19, 2016, New York City’s Commission on Human Rights (NYCCHR) issued new guidelines requiring employers and landlords to implement transgender pronouns (“ze/hir”) as requested by transgender workers or tenants. Failure to comply may open organizations and individuals up to $250,000 in fines if that failure is motivated by malicious intent.

NYCCHR specifically notes that “harassment motivated by gender is a form of discrimination” and outlines examples of violation of its guidance in the context of failure to use an individual’s preferred name or pronoun, refusing to allow individuals to utilize single-sex facilities and programs consistent with an individual’s preferred gender, sex stereotyping, imposing different uniforms or grooming standards based on sex or gender, providing employee benefits that discriminate based on gender, considering gender when evaluating requests for accommodation, and engaging in discriminatory harassment and retaliation.

For more information regarding the EEOC’s Fact Sheet, related guidelines, and best practices with respect to transgender individuals in the workplace, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.