Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
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Immigration And Employment—Law Part 1

As stated in prior articles, certain areas of law are interrelated. One such interrelation is that of immigration and employment law. This article is for both employers and employees. Specifically, this article will be the first of a series. Part one, will be an introduction to the relationship of immigration and employment law. Part two will be an detailed expose of what appears to be common workplace violations as they relate to the employment of foreign nationals; these violations are ones committed by both employers and employees alike. Part three will be suggested strategies and remedies for management and employees alike to address what is perceived as workplace violations.

Both immigration law and employment law have its origins in statute. The immigration law may be found in the Immigration and Nationality Act, with specific reference to the Immigration Reform and Control Act of 1986. Immigration law is purely federal.

Employment law on the other hand is both federal and state. While modern labor and employment law may trace its origins to the Civil Rights Act of 1866 and the Fair Labor Standard Act of 1933, the Civil Rights Act of 1964 is the preeminent piece of federal legislation in the area. From the Civil Rights Act of 1964 comes the Age Discrimination in Employment Act of 1967, the Americans With Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Worker Adjustment and Retraining Notification Act, the Occupational Safety and Health Act, the Employee Retirement Income Security Act and the Employee Polygraph Protection Act.

While every state in the Union has its own set of labor and employment laws which work together with the above-referenced federal legislation, this article and the one's that follow will reference California Law only. In most legal disciplines, federal law preempts state law, meaning that if there is federal and state law on the same subject matter, federal law takes precedence. Not so with employment law. Thus, to do business or to work in California mandates at least some familiarity with the California Fair Employment Practices Act of 1959 and the California Fair Employment and Housing Act; the two seminal pieces of employment legislation in California. There are, of course, other statutory bases of labor and employment laws in California, such as the California Labor Code. Both employers and employees alike should be informed of California Laws that apply to their individual situations such as the Labor Code. Labor code provisions that often creep into the cross over area of immigration and employment law include but are not limited to: California Labor Code §1174-the creation of the Industrial Welfare Commission which issues wage orders establishing minimum conditions of employment and whether or not persons are entitled to overtime; §201 pertaining to the prompt payment of wages upon lay-off or termination; §227.3 prompt payment of unused vacation or in some cases, paid-time-off; §970 prohibiting employers from misrepresentation concerning job-references.

With the creation of "new" laws comes the creation of agencies to enforce said laws. At the federal level, the Equal Employment Opportunity Commission is charged with enforcement of the Civil Rights Act of 1964 and other federal laws. The Internal Revenue Service, the Social Security Administration, the United States Department of Labor and the Office of the Special Counsel are other relevant federal agencies pertaining to the crossover of employment and immigration law.

Immigration law is one area where, as mentioned above, federal law preempts the State. Put differently, there is no state immigration law and therefore federal law is the only law on the subject matter. Thus, if there is immigration related unfair employment practice or another immigration related discrimination issue that is raised in a state forum, the matter will be "removed" to a federal one.

The following issues are the ones that normally arise in the cross over areas of immigration and employment law. As stated above, these issues will be more fully explored in articles to come. For the time being, consider if these apply to you. You might be an H-1B employee working in a position other than that which your employer sponsored you for. You might be making less than the prevailing wage for your position, in an H-1B or in conjunction with your application for permanent residence. Your employer might not be paying you overtime "in return" for its willingness to sponsor you for your H or green card. Your employer may be having you work full time-yet claiming that you work part time to the relevant state and federal authorities-paying you the other half of your salary off the books. Worse yet, you might be working without authorization from the USCIS, using a false social security number, or rather, a real one that is just not your own. You might be asked to produce documents for I-9 verification that you cannot produce or better yet, are not required to produce them. You might be terminated on account of your race, ethnicity, and national origin. You may have been harassed or discriminated against on account of the same, or something else. You have not been paid what you should have been paid, or in any event, monies are still owing you.

If the foregoing conduct has occurred, the relevant federal and state agencies that might uncover the violations are the Social Security Administration, the Department of Motor Vehicles, the Franchise Tax Board, the Internal Revenue Service, the Department of Labor, the Equal Employment Opportunity Commission, the California Department of Fair Housing and Employment, the Office of the Special Counsel for Unfair Immigration Related Employment Practices and the California Employment Development Department.

With the continued shift from benefits to enforcement, many state and federal agencies are taking a closer look at employment related immigration practices. If you are an employer, you know that right or wrong, most every employee that has ever been let go, feels as though they were wrongfully terminated. And, while their termination case might not go anywhere in and of itself, the very investigation of the same might result in other agencies getting involved. If you are an employee being victimized under the pretext of your employer doing you a favor, take a closer look at your situation.

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