Wilner & O'Reilly, APLC - Immigration Attorneys In California And Utah
One Practice. One Focus. One Passion: Immigration Law.

Sponsoring Foreign Workers…And Getting Sued By Them

You are an employer. Perhaps a home health-care provider or other small business. Through years of hard-work and business savvy, your business has grown. You have hired local employees, imported talent through the H1-B visa program, and perhaps have even sponsored your employees for lawful permanent residence. You have made the mistake of allowing your employees to pay their own attorney's fees for an H-1B.

Downward economies tend to spawn the filing of lawsuits. As a result, employers, especially small businesses, can never be too careful. Home health-care facilities are a natural target for the trial lawyer and her client(s). Your personal and business reputations, not to mention your wallet, are on the line. To that end, there are several things you, as an employer, should be aware of.

The State of California is an at-will employment state. What this means is that you have the right to terminate your employees with or without cause. It means that your employees have the right to quit, with or without cause or even giving you notice. The days of your employees feeling "obligated" to continue to work for you on account of your petitioning them for an H1-B or even sponsoring them for a green-card are long gone. In fact, it is these very same employees that are more likely to sue you.

We are not suggesting you refrain from sponsoring employees as non-immigrants or immigrants. Instead, we are suggesting that you be aware of your rights and the rights of your employees. We are suggesting that you conduct yourself and your business legally and ethically. We are suggesting that you replace the perception that "no one else but illegal aliens will do the job that you have to offer them" with the motivation to get your business in-line with state and federal law. This motivation will be rewarded with increased productivity of your employees, future increased profit margins, and most importantly, piece of mind. We are suggesting that you be an example instead of being made and example of.

In my opinion, the most common violation of the law that occurs within the Filipino community involves petitioning H-1B employees. Specifically, it involves the payment of attorney's fees. Department of Labor Regulations at 20 CFR 655.731(c) permit only employers to pay H-1B attorney's fees. Any costs associated with the filing are likewise the responsibility of the employer. These expenses (attorney's fees or otherwise) may not be shifted to the employee.

Your employees have rights. These rights include but are not limited to the right to earn a federally mandated minimum wage. Your employees have the right to work in a non-hostile environment, free of sex, race and age-based discrimination. They have the right to earn overtime, unless they are in an exempt position. They have the right to sue you on behalf of themselves and other employees for wage and hour violations.

Your business competitors have the right to sue you for unfair business practices and alleged violations of the RICO statute claiming that it is impossible to compete with you since you hire illegal aliens. Your competitors may inform the Civil Rights Division of the United States Department of Justice that you have committed I-9 violations, other "document abuses" and/or other "unfair immigration related employment practices ("UIREP's"). That you have been discarding "mismatch" letters from the Social Security Administration that inform you that one of your employees (or perhaps many) has a social security number that is erroneous. With a predicted paradigm shift from the SSA to "enforcement" instead of "benefits", your concern is reasonable.

The foregoing notwithstanding, you, as an employer, have rights too. You have the right to hire and fire whomever you may choose. You have the right to conduct yourself ethically and legally like a business owner should. You have the right to hire from an immensely talented labor pool both within and without the United States. You have the right to import foreign talent through H1-B non-immigrants and otherwise.

You have the right to incorporate immigration related compliance policies through your own human resources department or through out-sourcing the same. You may conduct supervised I-9 audits in accordance with the law to determine whether or not your employees are actually entitled to work in the United States. You may define the nature and scope of your employee's duties in written policy manuals. You may have your employees sign these same manuals and limit their right to sue you. You may draft employee arbitration agreements that subject your employees to the exhaustion of administrative remedies prior to the institution of any lawsuits against you. You may even wish to consider incorporating a binding arbitration clause in such agreements that require your employees to give up their right to a court or jury trial in favor of arbitration. Some employer's even make their employees pay half the costs of the arbitration. Allowing the prevailing party to recover the attorney's fees and costs incurred in the arbitration is also a common clause.

Be careful. In today's plaintiff driven environment, no good deed goes unpunished. That there is a shortage of legal workers that are willing to do certain jobs is no excuse for violating the law. Short-term profits earned through illegal hiring practices will be usurped by long-term lawsuits and legal fees instituted at the hands of your employees and competitors alike. The perception that your employees are "unappreciative" for the work opportunities that you have provided them should be replaced by the motivation to create a work-environment that is premised upon the production of quality product and/or service, honor and integrity. Be an example. Do not be made and example of.

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