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 green cards. Some of your employees have work-permits. Some don't. Your immigration lawyers have informed you that USCIS (INS) will not come after you if your employees are grand-fathered under 245i. These same lawyers, however, have neglected to inform you of other federal and state agencies, not to mention hungry plaintiff's-lawyers that will. In light of the foregoing, this article is for you.
With the rise in frivolous lawsuits and the lawyers willing to prosecute these types of cases under the auspices of getting a quick monetary settlement, employers, especially small businesses, can never be too careful. Home health-care facilities are a natural target for the trial lawyer and his 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 theory behind at-will employment is that it promotes competition in the marketplace by promoting mobility of employees and the hiring of talented or even unskilled workers. The days of your employees feeling "obligated" to you on account of your petitioning them for an H1-B or even sponsoring them for a green-card are over. In fact, it is these very same employees that are more likely to sue you. Why not? They can earn money without working. They can feign disability problems and find a lawyer and a chiropractor willing to support their claims. Put simply, they can get paid.
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.
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.