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. Parts two will be an 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 immigration law is the only