ICE Capades: Worksite Immigration Enforcement SurgesWorksite enforcement actions related to unauthorized workers are on the rise. Fulfilling a promise from 2017, Homeland Security Investigations (HSI), the investigatory arm of U.S. Immigration and Customs Enforcement (ICE), has significantly ramped up its efforts to clamp down on the employment of unauthorized workers. ICE’s recently released statistics for Fiscal Year (FY) 2018 show a dramatic surge in the number of worksite enforcement actions carried out by HSI. According to HSI Associate Director Derek N. Benner, this trend is intended to:

“protect jobs for U.S. citizens and others who are lawfully employed, reduce the incentive of illegal migration, eliminate unfair competitive advantages for companies that hire an illegal workforce, and ultimately help strengthen public safety and national security.”

According to ICE, in FY 2018, HSI quadrupled its worksite investigations (6,848 in FY 2018 versus 1,691 in FY 2017) and its Form I-9 audits (5,981 in FY 2018 as compared to 1,360 in FY 2017). In addition, HSI made 779 criminal and 1,525 administrative worksite-related arrests in FY 2018, compared to 139 and 172, respectively, the previous year. This reflects an increase of between 300 and 750 percent in these statistical categories.

Employers should not expect this trend to change any time soon. The Trump administration views reducing illegal employment as a critical part of its broader hardline immigration policy and is clearly committed to vigorous enforcement. The time for employers to make sure their immigration compliance practices are in order is now.

So, What Can You Do?

There are a number of measures that an employer can take to reduce its potential exposure in the event it finds itself in ICE’s crosshairs:

  • Make sure your Form I-9s are completed timely and correctly. Check your current protocols to ensure that these forms are being processed properly when new employees are hired. If ICE initiates an investigation at your place of business, having good Form I-9s will go a long way in reducing potential exposure.
  • Provide comprehensive training to the company representatives who are responsible for completing your Form I-9s. Completing these forms correctly is not rocket science, but knowing how to do it properly takes training.
  • As we have said before, conduct an internal audit of your existing Form I-9s or have an independent third party do it for you. If your Form I-9s are missing or contain errors, there are steps you can take to improve your lot. Do this sooner rather than later. Once ICE shows up, you’re probably out of time.
  • Be prepared in the event of a Form I-9 audit or other ICE investigation. It’s critical to know in advance who at the company is responsible for dealing with ICE officials. No employer is exempt from the possibility of a visit from ICE. Having a well-devised contingency plan is key.
  • Attend our firm’s Breakfast with Bradley Seminar on March 14. We will be hosting this event in six of our offices—Birmingham, Charlotte, Huntsville, Jackson, Montgomery and Nashville. One of the topics, which I’ll cover, is “Immigration Compliance for Employers in Today’s Enforcement Environment.” I’ll discuss ICE’s new enforcement priorities and provide tips on how employers can stay compliant with their immigration-related obligations. Look for the invitation – we hope to see you there.

Fifth Circuit Rejects Title VII Transgender Protection, but Grants Summary Judgment on Other GroundsIn Wittmer v. Phillips 66, Judge James Ho of the Fifth Circuit wasted no time stating the Fifth Circuit’s position on whether sexual orientation or transgender status are protected classes under Title VII – they are not. Interestingly, however, the defendant did not even raise that as a defense. In fact, the lower court and the Fifth Circuit both found in favor of Phillips 66 on other grounds. But it is pretty obvious from the majority opinion, and Judge Ho’s concurring opinion, that the Fifth Circuit wanted the world to know how it feels about the extent of sex discrimination protection under Title VII.

Nondiscriminatory Reason: Misrepresentation during the Interview

Nicole Wittmer, a transgender woman, applied for a position with Phillips 66. During her interview, Wittmer talked about her current employment with another company and the fact that travel with that job was why she wanted to change jobs. However, when Phillips 66 did a background check, it learned that Wittmer had actually been terminated from that company a month before. Disturbed by this inconsistency, Phillips 66 decided not to give Wittmer the job. Wittmer then wrote to them and alleged that Phillips 66 discriminated against her because of her transgender status. For its part, Phillips 66 said it had no idea about Wittmer’s transgender status before she sent that after-the-fact email and told her that the information would not have affected its decision anyway. Disagreeing, Wittmer filed a lawsuit alleging discrimination under Title VII based on her transgender status.

Phillips 66’s Defense

At the lower court level, Phillips 66 took no position on whether Title VII prohibits transgender discrimination. Instead, it moved for summary judgment arguing that Wittmer had not stated a prima facie case of transgender discrimination and, even if she had, that Phillips 66 had a legitimate, non-discriminatory reason for not hiring her—misrepresentation in her interview. The lower court granted summary judgment, and Wittmer appealed.

On appeal, Phillips 66 again decided not to take a position on whether Title VII prohibits transgender discrimination. Instead, it stood on the defense that it chose not to hire Wittmer because she didn’t tell the truth during her interview about her current employment.

Fifth Circuit Opinion

Although the Fifth Circuit ultimately agreed with the lower court that Wittmer didn’t establish a claim of discrimination and that Phillips 66’s reason for not hiring her was not pretextual, the court went out of its way to address the transgender Title VII issue. (The one that the defendant didn’t raise.) Judge Ho wrote the majority opinion and stated that although three other circuits have found that Title VII prohibits discrimination on the basis of sexual orientation or transgender status, the Fifth Circuit does not recognize that prohibition. Relying upon its 1979 Blum v. Gulf Oil Corporation decision holding that Title VII does not prohibit discrimination on the basis of sexual orientation, the Fifth Circuit rejected Title VII coverage for transgender status. Judge Ho also authored a 14-page concurring opinion in which he strongly takes issue with some of the developments in gender identity and transgender discrimination law.

Where Does That Leave Us?

This opinion leaves little doubt that the Fifth Circuit (which covers Mississippi, Louisiana and Texas), as of right now, does not recognize sexual orientation or transgender status as automatically protected classes under Title VII. Although Judge Ho’s concurring opinion takes some shots at the U.S. Supreme Court’s Price Waterhouse v. Hopkins decision on gender-stereotyping discrimination, the majority opinion did not hold that the Fifth Circuit rejected such gender-stereotyping protection. This opinion further sets up a circuit split that is likely to be decided by the U.S. Supreme Court sometime in the future.

Take Two: Alabama’s City Versus State Minimum Wage Dispute to Get Full Appellate ReviewMinimum wage laws invite controversy, and Alabama’s latest tug-of-war between the state and its largest city is going to get another wider review. You may recall that back in 2015, Birmingham, Alabama, passed a local minimum wage law. On the heels of that move, the Alabama Legislature then passed a state-wide minimum wage law, preempting local city laws. In response to the state’s new law, some Birmingham citizens, along with the NAACP, contended that the law discriminated against minorities and filed suit. After the federal district court dismissed the case, in July 2018 a three-judge panel of the Eleventh Circuit reversed, finding the plaintiffs asserted a plausible 14th Amendment claim. Under that decision, the litigation could go forward. That ruling, however, was recently vacated, and now every judge on the Eleventh Circuit court will weigh in on the matter.

Minimum Wage Controversy

In April 2015, the Birmingham City Council passed a resolution calling on the Alabama Legislature to raise the minimum wage to $10 per hour. The Alabama Legislature declined, so the Birmingham City Council adopted its own ordinance to raise the minimum wage, first to $8.50 per hour and then to $10.10 per hour.

Almost immediately thereafter, a state representative introduced a bill to quash the local ordinance and establish a uniform minimum wage throughout the state. The state has no minimum wage above the current federal minimum wage of $7.25 per hour. The Alabama House passed the bill in February 2016. In the meantime, the Birmingham City ordinance raising the minimum wage to $10.10 per hour went into effect, but only briefly. The next day, the Alabama Senate passed, and then Gov. Bentley signed, the Minimum Wage Act mandating the minimum wage be set at the federal minimum of $7.25 per hour and preempting all local laws. The law preempts all local labor and employment laws that a city or municipality might attempt.

Procedural Background

A few months later, a group of Birmingham residents, along with public interest groups, filed suit against the governor and state attorney general claiming racial discrimination under the 13th, 14th, and 15th Amendments of the U.S. Constitution and Section 2 of the Voting Rights Act. The plaintiffs contended that the state law has both a discriminatory purpose and effect. The state argued in response that the law is facially neutral. The federal district court dismissed all claims in February 2017, and the plaintiffs appealed to the Eleventh Circuit.

The three-judge panel of the Eleventh Circuit affirmed the dismissal of the claims under the 13th and 15th Amendments, as well as under the Voting Rights Act. However, it reversed the district court’s dismissal as to one claim, finding that the plaintiffs stated a plausible claim that the Minimum Wage Act purposely discriminated against Birmingham’s black citizens in violation of the 14th Amendment. In reversing, the panel highlighted that, according to the complaint, the act denied 37 percent of the city’s black wage earners a higher wage, compared to only 27 percent of white workers. Further, according to the complaint, black workers earn, on average, $1.41 less per hour in the city and $2.12 less per hour statewide than white workers. The panel’s ruling found it plausible that the act bore more heavily on black workers and that the plaintiffs had indeed stated a viable claim, deeming the legislative vote to have been “rushed, reactionary, and racially polarized.”

Shortly after the panel’s ruling, the State of Alabama and its attorney general filed a motion to have the matter reheard by the entire Circuit Court. In its motion, the state said the case “raises fundamental questions about the dignity of States, the efficacy of federal-court proceedings, the standard for finding state-sanctioned racism, and the role of courts in shaping public discourse” making it “an exceptionally important [case] that absolutely requires the full Court’s attention.”

Ruling Vacated and To Be Reviewed by Entire Circuit Panel

On January 30, the Eleventh Circuit granted the rehearing request (called “rehearing en banc”), thereby vacating the previous decision. Now the entire Circuit Court (12 judges) will review the claims and the district court’s dismissal. A rehearing of this nature is generally rare and granted only when necessary to maintain uniformity of decisions or for questions of “exceptional importance.” Reading the tea leaves of the decision suggests that the court will alter or revise the panel’s previous ruling in some way, but that is far from certain. Stay tuned for what will be a significant ruling related to Alabama’s minimum wage law and the discrimination allegations. For now, however, the minimum wage in Birmingham is still $7.25 an hour.