Seyfarth Synopsis: Wishing you a wonderful holiday season. 

As we begin the traditional start of the holiday season and before the crush of the end of the year is upon us, we wanted to take a moment to thank you – the readers of the Employment Law Lookout Blog – for your loyal readership and feedback.  We strive to make our reports entertaining and helpful and hope that you find them so.

We are also pleased to announce that the Firm’s Social Media Privacy Legislation Desktop Reference has been updated and is now available for your review and use.  Please see below for how to register to receive both an on-line as well as hard copy of this publication.

On behalf of the entire Seyfarth blog team, thank you.  Have a safe, happy and peaceful Holiday Weekend.

Now Available! Seyfarth Shaw’s 2017-2018 Edition  of the Social Media Privacy Legislation Desktop Reference

There is no denying that social media continues to transform the way companies conduct business. In light of the rapid evolution of social media, companies today face significant legal challenges on a variety of issues ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property.

Seyfarth Shaw is pleased to provide you with the 2017–2018 edition of our easy-to-use guide to social media privacy legislation and what employers need to know. The Social Media Privacy Legislation Desktop Reference:

  • Describes the content and purpose of the various states’ new social media privacy laws.
  • Delivers a detailed state-by-state description of each law, listing a general overview, what is prohibited, what is allowed, the remedies for violations, and special notes for each statute.
  • Provides an easy-to-use chart listing on one axis the states that have enacted social media privacy legislation, and on the other, whether each state’s law contains one or more key features.
  • Offers our thoughts on the implications of this legislation in other areas, including trade secret misappropriation, bring your own device issues and concerns, social media discovery and evidence considerations, and use of social media in internal investigations.
  • Concludes with some best practices to assist companies in navigating this challenging area.

How To Get Your Desktop Reference

To request the 2017–2018 Edition of the Social Media Privacy Legislation Desktop Reference as a pdf or hard copy, please click here.

 

 

By James M. Hlawek, Robert A. Fisher, and Molly Mooney

Seyfarth Synopsis: A Massachusetts federal court has found that reporting a rumored office romance and complaining about paramour favoritism can be protected activity that is protected by anti-retaliation laws. The court also found for the first time that paramour favoritism can be the basis of an unlawful discrimination claim.

An employee went to Human Resources to report that he thought his male boss was having an “inappropriate relationship” with a female employee. The employee also reported that he thought his boss was favoring his rumored paramour over male employees. Two months later, the employee who reported the rumor was fired. In Downing v. Omnicare, Inc., the federal district court for the District of Massachusetts found that the employee may have a viable retaliation claim under Massachusetts law even though his reports of office romance were based on nothing more than rumor.

Throughout his employment with Omnicare, Plaintiff Patrick Downing reported to Jeffrey Stamps. Downing began to believe that Stamps was romantically involved with another Omnicare employee, Karen Burton. Downing’s belief was unsubstantiated — it was based on things like his perception that Stamps and Burton were “flirting” and touching arms at work events, that Burton told him that she was getting a bikini wax before attending a conference with Stamps, that Stamps and Burton attended a spouse-friendly event without their spouses, and that another employee told him that she thought Burton and Stamps engaged in sexual activity while attending a conference. Also, Downing at one point recommended to Stamps that Burton, who reported to Downing at the time, should be fired because of poor performance. Downing claimed that Stamps told him, “if you terminate her, I’ll save her.”

In 2011, Downing interviewed multiple candidates, including Burton, for two Regional Vice President positions. Downing felt Burton was not qualified and therefore offered the positions to other candidates. During the interview process, Downing felt Stamps tried to push for Burton, and then acted “more coolly” towards Downing after he didn’t offer the positions to Burton.

In early 2012, Stamps gave Downing his 2011 performance review and informed him that he would not be receiving a raise. Disappointed, Downing turned to Human Resources. In April 2012, he reported to Human Resources that he thought Stamps and Burton were having an inappropriate relationship, that he thought Stamps was favoring Burton over male employees, and that his lack of a raise was punishment for not promoting Burton. The Human Resources employee reported the conversation to the CEO and also claimed that Downing requested a severance package. Downing, however, denies that he requested a package or that he wanted to leave. Regardless, the CEO decided to place Downing on a leave of absence in May 2012 and terminated his employment in June 2012 purportedly because Downing did not want to continue his employment.

Downing brought suit against Omnicare alleging that Omnicare retaliated against him in violation of the Massachusetts anti-discrimination statute, Chapter 151B, for reporting Stamps’ rumored relationship with Burton to Human Resources. Omnicare moved for summary judgment. The court found that to withstand summary judgment and proceed to trial, Downing had to establish that he had a reasonable belief that Stamps was engaged in wrongful discrimination, that he engaged in a protected activity, and that Omnicare fired him because of the protected activity.

The court first found that Downing presented enough evidence to show a reasonable belief that Stamps was engaged in unlawful discrimination by favoring his supposed paramour over male employees. Because Downing reasonably believed that Stamps was engaged in unlawful discrimination, Downing’s complaint to Human Resources was protected activity “regardless of whether a relationship actually existed.” Notably, this means that an employee may be able to bring a discrimination suit based on paramour favoritism. This is the first time that a Massachusetts court has recognized that paramour favoritism can be the basis of a discrimination suit. Further, the court’s decision means that an employee may have a retaliation claim merely by reporting a rumor of an office romance.

The court also found that the fact that Omnicare put Downing on leave just one month after he spoke to Human Resources was enough evidence to show causation. The court, therefore, found that Downing had a viable retaliation claim and scheduled the claim for a jury trial in December.

Downing v. Omnicare serves as a reminder that reports of office romance — even rumors of office romance — and paramour favoritism should be taken seriously. Even if a report is ultimately unsubstantiated, taking action against the reporting employee may still be considered retaliatory if the employee believed what he or she was reporting.

By David J. Rowland and Megan P. Toth

Seyfarth SynopsisThe Eleventh Circuit is the next to find a long-term leave of absence is not a reasonable accommodation under the ADA.

Just a few months after a recent and definitive decision by the Seventh Circuit that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the Americans with Disabilities Act (ADA), the Eleventh Circuit has issued a similar opinion. This decision may signal a growing trend that courts are attempting to curb the abuse of long-term leaves of absence under the ADA that has been rampant and debilitating to employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities Authority, the plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He was not able to have corrective surgery during this time, so under the employers medical leave policy, he was granted another three-month medical leave.  However, at the end of this period — a total of six months of leave — the employee was still not medically able to return to work. He told the employer that he had a doctors appoint in a month and would likely be released to work in six weeks, but it was unclear whether he would have any restrictions at that time. Thus, the employer terminated the plaintiff’s employment and he sued, alleging failure by the employer to provide additional leave as an ADA reasonable accommodation.

The Eleventh Circuit affirmed dismissal of the plaintiff’s claim on summary judgment. The plaintiff acknowledged that case precedent says that employers are not required to provide indefinite leaves. However, he argued that these prior decisions involved situations where employees suffered from chronic medical conditions that could continue indefinitely. In this case, the plaintiff contended that an unspecified leave was reasonable because there was a projected end date and once concluded, his medical condition would be resolved without the potential need for additional leave.

The Eleventh Circuit rejected this argument finding that even though the plaintiff would eventually recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted that the employer did not violate the ADA because it already provided six months of leave and the plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual.  Thus, the court found that regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

It appears that the Seventh Circuit is not the lone-ranger in its attempt to invalidate the EEOC’s historic and strongly advocated position that long-term leaves are required “reasonable accommodations” under the ADA.  If other circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify the denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods.

If an employee cannot medically substantiate that they can return to work close to the expiration of their FMLA leave, employers may have greater legal flexibility in determining whether or not to accommodate the request. While employers should be aware of this apparently growing trend and may choose to adjust their leave and accommodation approaches accordingly, they still must approach long-term and indefinite leave requests very carefully as there are conflicting decisions from other circuits and the EEOC’s position will remain unchanged unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

By Erin Dougherty Foley and Karla Grossenbacher

Seyfarth Synopsis: In this hot topic webinar, on Thursday, November 16, 2017, we will discuss how to avoid becoming the next target in a lawsuit concerning the collection and retention of biometric data. There is no cost to attend this program, but registration is required.

In the past two months, at least 32 class action lawsuits have been filed relating to biometric privacy. These suits target a number of industries – everything from companies in the restaurant and hospitality businesses to nursing homes and major social media giants. If you use biometric technology in your company, you need to make sure you are not the next to make the headlines.

Recently, and particularly in the state of Illinois, there has been an uptick in litigation related to the collection and retention of biometric information by businesses, If your company uses any form of biometric technology, such as a biometric timeclock, biometric package tracking or any kind of employee or customer facing biometric technology, you need to make sure you are in compliance with applicable law. This webinar will discuss each of the state laws governing the collection and storage of biometric information, the requirements for businesses, best practices for compliance.

Be sure to register if you wish to attend this webinar. If you have any questions, please contact events@seyfarth.com.

By Rachel Bernasconi and Amanda Cavanough

LinkedIn is the biggest online network of professionals in the world.  Many employers encourage staff to use LinkedIn to promote their organisation.

While employees may share content relating to their organisation, they tend to think of their profile as personal to them, like a resume, which is available to recruiters, colleagues and clients.

Yes, the LinkedIn account belongs to the individual, but that doesn’t mean that ‘anything goes’.

On signing up, you agree with LinkedIn to provide truthful information and to not misrepresent your current or previous positions or qualifications.  Even so, we have all noticed information on LinkedIn that isn’t 100% accurate.

You may have had a similar experience where you look up a contact on LinkedIn, and their profile shows them at a job they left months ago.

Perhaps they are on gardening leave, or they have been exited against their will and don’t want to say they are unemployed.  There is the potential that their account was connected to a work email address that they can no longer access, and signing back in has become too problematic.

But in more concerning circumstances, some people use their LinkedIn profile to paper over gaps in a resume – this is an age-old issue, but with LinkedIn and online platforms, it is increasingly visible.

Other than getting frustrated, what can employers do when an employee fails to update their LinkedIn profile?

There are options to manage this risk as an employer:

  • Writing to the employee and asking them to correct the details
  • Using the LinkedIn feature to ‘disconnect’ that contact from your organisation, removing them from search results and the list of employees
  • Reminding departing employees of expectations in exit interviews
  • Including a term of a release agreement or deed which can be specifically enforced if necessary.

Is it worth the trouble from a commercial perspective?  The answer may well depend on the individual involved. It is always a balancing act, but when rights and obligations are clearly defined, resources like LinkedIn are proven to work in everyone’s interest.

By Scott Rabe, Sam Schwartz-Fenwick, and Marlin Duro

Seyfarth Synopsis: In the first case following the Department of Justice’s pronouncement that Title VII does not prohibit discrimination against transgender persons on the basis of gender identity, a court in the Western District of Oklahoma held that Title VII protects transgender individuals from discrimination. Tudor v. Se. Okla. State Univ., No. civ-15-324-C. (W.D. Okla. Oct. 26, 2017).

With the recent October 5, 2017 memorandum from the Department of Justice stating that Title VII does not prohibit discrimination against transgender persons, the legal landscape regarding Title VII’s protection of transgender individuals is very much in flux. The DOJ’s interpretation is a reversal of the DOJ’s interpretation under the Obama administration and also conflicts with the current interpretation of the EEOC, both of which interpret Title VII to prohibit discrimination on the basis of gender identity. U.S. Circuit courts are also split on the issue, meaning this issue is likely primed for resolution by the Supreme Court in the not too distant future.

The latest decision addressing this issue comes from Tudor v. Southeastern Oklahoma State University, a case from the Western District of Oklahoma in which Tudor, a transgender former professor at Southeastern Oklahoma State University, alleged among other things that she was harassed and discriminated against on the basis of her gender identity after she was denied tenure following her transition from male to female. The court in Tudor denied the university’s motion for summary judgment, finding that there were triable issues of fact with respect to each of Tudor’s claims. This decision is important because it shows that, despite the DOJ’s memorandum, courts are still willing to extend Title VII protections to transgender persons. It also provides helpful guidance to employers as they ponder how their own internal policies and procedures affect transgender employees.

Importantly, the court in Tudor rejected the University’s argument that Tudor was not entitled to protection under Title VII because “transgender” is not a protected class. The court, relying on its prior ruling on the issue, reiterated that Title VII’s prohibition of gender discrimination extended to transgender individuals to the extent they were discriminated against based on “gender non-conformity.” Specifically, Tudor had alleged that Defendant’s actions towards her occurred because she was female, yet Defendants regarded her as male.

The Court also denied the University’s motion for summary judgment on Tudor’s hostile work environment claim, finding that there was a triable issue of fact. In particular, the court highlighted Tudor’s evidence that for four years the University placed restrictions on what restroom she could use, how she could dress, what makeup she could wear, and that it used the wrong pronouns when referencing her. The Court found that these facts, if true, could be sufficient to establish a hostile work environment claim.

The Court also rejected the University’s Faragher/Ellerth defense, which can provide a complete defense to an employer that has non-discrimination and non-harassment policies in place but where an employee fails to take advantage of those procedures. Here, the court explained that the defense would not apply because the University’s sexual harassment and sex discrimination policies did not contain specific language regarding protections for transgender employees.

Even though the law in this area remains uncertain, there is much for employers to glean from the Tudor case. First, it is clear that the DOJ’s recent memorandum has not resolved the question of whether Title VII protects transgender employers on the basis of gender identity. Therefore, employers should be vigilant in establishing and maintaining non-discrimination and anti-harassment policies that extend protections to individuals on the basis of gender identity. This will help ensure that employers stay compliant with federal (and applicable state and local) laws, and it also preserves a potential Faragher/Ellerth defense to a hostile work environment claim. Employers should also be mindful of the unique conduct that may be considered harassing in nature to transgender employees. For example, Tudor demonstrates that denying employees access to their bathroom of choice, enacting strict gender normative dress codes, and refusing to use preferred pronouns may all contribute to a hostile work environment. Thus, employers should update their anti-harassment policies and trainings to include examples that address some of the unique scenarios affecting transgender employees.

As always, we invite employers to reach out to their Seyfarth contact for solutions and recommendations regarding anti-harassment and EEO policies and addressing compliance with LGBT issues in the law.

By Esther Slater McDonald

Seyfarth Synopsis: In Spokeo, Inc. v. Robins, the U.S. Supreme Court held that a plaintiff must have a concrete injury to sue for FCRA violations. Following Spokeo’s remand, courts have held that consumers have standing to sue if their reports are inaccurate even if an inaccuracy did not adversely affect them.

In Spokeo, the U.S. Supreme Court reaffirmed that plaintiffs seeking to sue in federal court must have a concrete, actual injury; a mere statutory violation is not enough. The U.S. Supreme Court remanded the case for the Ninth Circuit to determine whether the plaintiff had alleged a concrete injury. (See our prior posts hereherehere, and here for a summary of the case background and a more detailed explanation of the U.S. Supreme Court’s ruling.)

The Ninth Circuit’s Ruling on Remand

On remand, in Spokeo, Inc. v. Robins, the Ninth Circuit concluded that the plaintiff had sufficiently pled a concrete injury in fact and thus had standing to proceed with his FCRA claims. The court stated that, although a plaintiff may not show an injury-in-fact merely by pointing to a statutory violation, “some statutory violations, alone, do establish concrete harm.” To determine whether a statutory violation is itself a concrete injury, the court created a two-part test that asks (1) whether the statutory provision at issue was established to protect the consumer’s concrete interests (as opposed to purely procedural rights), and, if yes, (2) whether the specific procedural violation alleged actually harmed or presented a material risk of harm to those interests.

On the first question, the Ninth Circuit noted that the plaintiff had alleged a violation of the FCRA’s requirement that a consumer reporting agency have reasonable procedures in place to ensure the maximum possible accuracy in reporting. The court concluded that this provision “protect[s] consumers’ concrete interests” in accurate reporting and consumer privacy and that these interests are “‘real’ rather than purely legal creations.” The court reasoned that “given the ubiquity and importance of consumer reports in modern life—in employment decisions, in loan applications, in home purchases, and much more—the real-world implications of material inaccuracies in those reports seem patent on their face.” The court also noted that “the interests that FCRA protects also resemble other reputational and privacy interests that have long been protected in the law.”

As to the second question, the Ninth Circuit stated that it required an “examination of the nature of the specific alleged reporting inaccuracies to ensure that they raise a real risk of harm to the concrete interests that the FCRA protects.” The court concluded that, while a benign inaccuracy may not be harmful, the plaintiff had raised a real risk of harm by alleging that the defendant had inaccurately reported that he was married, had children, was in his 50’s, was employed, had a graduate degree, and was financially stable. The court reasoned that this information “is the type that may be important to employers or others making use of a consumer report.”

The Ninth Circuit held that whether an employer or other end user considered the inaccurate information was irrelevant. Although the defendant argued that the plaintiff must show that the information actually harmed his employment prospects or presented a material or impending risk of doing so, the court disagreed. In the court’s view, “[t]he threat to a consumer’s livelihood is caused by the very existence of inaccurate information in his credit report and the likelihood that such information will be important to one of the many entities who make use of such reports.” Thus, a materially inaccurate report is itself a concrete injury.

Although the Ninth Circuit spoke of harm and materiality, the crux of the opinion appears to be that any inaccuracy will provide standing if it involves information that a user of a report may consider even if no one ever does consider it. And that is how one court recently interpreted the ruling.

In Alame v. Mergers Marketinga judge in the Western District of Missouri held that a plaintiff had standing to sue because he alleged that the defendant’s reporting made it appear that he moved around a lot. The plaintiff’s background report included 22 address entries for him. Some of the address entries were for the same location but varied as to the formatting of the address. The plaintiff claimed that reporting formatting variations inaccurately conveyed that he had lived at 22 different locations. The plaintiff did not allege that anyone had interpreted the report that way or that he had not lived at those locations. Nonetheless, quoting Robins, the court held that a plaintiff is injured by “‘the very existence of inaccurate information in his credit report.’”

Potential Conflict with Spokeo and Dreher

The Ninth Circuit’s opinion is difficult to reconcile with Spokeo. In Spokeo, the U.S. Supreme Court held that, to be sufficient, an injury must “actually exist” and clarified that “not all inaccuracies cause harm or present any material risk of harm” to a plaintiff. Yet, the Ninth Circuit held that an inaccurate report is itself a concrete injury even if the only people who received the report were the plaintiff and his lawyer. (The plaintiff did not allege that the defendant had furnished his report to anyone other than the plaintiff and his lawyer.)

The Ninth Circuit’s position also seems to conflict with the Fourth Circuit’s ruling in Dreher v. Experian Information SolutionsIn that case, the plaintiff sued a consumer reporting agency for inaccurately identifying the source of credit information in his report. The Fourth Circuit rejected the plaintiff’s argument that the inaccuracy itself was an injury. Instead, the court held that a plaintiff must show that he “was adversely affected by the alleged error on his report.” The court reasoned that an inaccuracy “work[s] no real world harm” unless it has a negative impact on the consumer.

Implications for Businesses

Robins and Dreher indicate that the federal courts are still grappling with Spokeo’s meaning. We expect the issue will continue to percolate in the federal courts. If the divide on Spokeo’s application deepens among the federal courts of appeal, the U.S. Supreme Court may revisit the standing issue to provide more clarity.

For now, under Robins, consumers may be able to bring FCRA claims in federal court whenever their reports contain inaccurate information unless that information is truly benign, such as when an address contains a mistyped zip code. Even if a plaintiff lacks Article III standing under Dreher, he or she may be able to proceed in state court in jurisdictions that recognize broad standing to sue for any statutory violation.

For this reason, employers obtaining background checks should be careful to comply with each of the FCRA’s highly technical requirements. Failing to comply with a requirement could expose a company to class action liability even if the violation did not impact hiring. Employers should consider conducting a privileged compliance review of their background screening process, including the notices used and the procedures followed for obtaining and using background reports. Employers should also review their policies regarding requesting and using salary history and criminal history in light of the increasing number of jurisdictions that restrict use of such information and the Equal Employment Opportunity Commission’s continued interest in background screening policies that may have a disparate impact on minorities.

If you have questions about these or other issues, please reach out to the author or your Seyfarth attorney.

 

By Christopher W. Kelleher, Rashal G. Baz, James L. Curtis, and Brent I. Clark,

Seyfarth Synopsis: On October 11, 2017, the Chicago City Council passed an ordinance that will require Chicago hotels to provide certain staff with “panic buttons” and develop enhanced anti-sexual harassment policies.

In an effort to protect hotel employees from sexual harassment and other guest-misconduct, Chicago has passed the Hotel Workers Sexual Harassment Ordinance, which requires Chicago hotels to provide employees who work alone in guest rooms or bathrooms with “a panic button or notification device” which can be used to call for help if the employee “reasonably believes that an ongoing crime, sexual harassment, sexual assault or other emergency is occurring in the employee’s presence.”

According to the Ordinance, “a panic button or notification device” is a portable device designed to be used in emergency situations to summon hotel security or other appropriate hotel staff to the employee’s location. The Ordinance does not require hotels to use a specific type of device, as long as it warns proper hotel personnel and it comes at no cost to the employee.

The Ordinance also requires hotels to develop and distribute a written policy to protect employees against sexual harassment. Specifically, the policy must: (1) encourage employees to promptly report sexual misconduct by guests; (2) describe procedures for handling the reported misconduct; (3) instruct the complaining employee to stop work and leave the dangerous area; (4) offer the employee temporary work assignments; (5) provide the employee with paid time off to make a complaint or testify as a witness; (6) inform employees of additional protections; and (7) include an anti-retaliation provision. The policy must be conspicuously posted in English, Spanish, and Polish.

The Ordinance authorizes fines of $250 – $500 for each day a violation continues, and two or more violations within any 12-month period may result in license suspension or revocation. Hotels will have until July 1, 2018 to implement “panic button” systems, but must comply with the Ordinance’s other provisions (i.e. develop and distribute an updated anti-sexual harassment policy) within 60 days of the law’s publication, which we can expect any day now.

Notably, the Occupational Safety and Health Administration (OSHA) uses the General Duty Clause  to enforce workplace issues against employers.  OSHA can rely on industry practices to support a claim that a “recognized hazard” exists. It is possible that OSHA will use the new Ordinance and employer compliance in Chicago as a basis to require that other hotel employers should also have “panic buttons.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team or the Workplace Safety and Health (OSHA/MSHA) Team.

By Mahsa Aliaskari

Seyfarth Synopsis:  Today’s post is by our colleague, Mahsa Aliaskari, Seyfarth Shaw LLP’s Senior Counsel. Mahsa has advised and defended businesses with up to 100,000+ nationwide employees on U.S. immigration compliance programs and practices.  She and Angelo A. Paparelli — along with former USCIS Director, Leon Rodriguez, noted worksite enforcement lawyer, Dawn Lurie, and Alexander Madrak, who recently joined Seyfarth from the Immigrant and Employee Rights Section in the Civil Rights Division of the U.S. Department of Justice — are part of Seyfarth’s Immigration Compliance Specialty Team, within the firm’s Immigration Group. Mahsa’s basic message is that, given the Administration’s focus on immigration worksite-enforcement, employers  — no matter how vigilant corporate leaders perceive their immigration compliance measures to be — must take nothing for granted.  Stop assuming and check things out.

Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers.  As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law.  Prior to this, the often touted “record settlement” included IFCO Systems North America Inc.’s (IFCO) $20.7 million dollars from 2006.

While the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies.  The story of Asplundh, similar to the stories of IFCO, Abercrombie and Fitch, Chipotle and many others, should serve as both an informative and cautionary tale. While each of these companies faced different challenges and immigration violations, the lessons in each should help general counsel and the C-suite at companies appreciate the importance of taking stock of their own practices and putting into motion an action plan designed to mitigate risks and liabilities where possible.  If nothing else, a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple a form and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

We also cannot bury our proverbial heads in the sand and ignore recent Executive Orders changing ICE’s immigration priorities-, and promoting “Buy American, Hire American” policies. While we have not yet seen the worksite raids we experienced under the Bush Administration or widespread “desk audits” or “silent raids” of Forms I-9 under the Obama administration, ICE is here for the long haul and future worksite investigations, on-site visits and Form I-9 audits can be expected.  This will be especially true as we see an increase in resources allocated to meet the current administration’s priorities in this arena.

The Story Behind Asplundh

Described as one of the largest privately-held companies in the United States, and headquartered in Willow Grove, Pennsylvania, Asplundh is now also known as the company that pled to the largest civil settlement agreement ever levied on an immigration case – how did they get here?

ICE’s six – year investigation found that Asplundh employed a scheme where employees were hired and re-hired even when lower level managers were aware of the fact that the employees were not authorized to work in the United States.  But more importantly, the charges noted that “the highest levels of Asplundh management remained willfully blind.” Even before the September 28th announcement of the settlement agreement following the guilty plea, the Department of Justice (DOJ) U.S. Attorney’s Office announced on September 19, 2017 that three employees, including supervisors and a Vice- President, had already entered guilty pleas to felony counts of conspiracy to commit fraud and misuse visas  in connection with this case, with each defendant facing prison time and fines.

ICE Acting Director Thomas Homan stated in its September 28th announcement that  “[t]oday’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet” (emphasis added).

The charge was for one count of unlawfully employing aliens. Statements from ICE and the (DOJ) U.S. Attorney’s Office describe a company practice where a decentralized hiring practice reinforced and supported the acceptance of fraudulent documentation presented to company representatives by new hires and re-hires in regions across the United States.  More specifically, as noted in ICE’s statement, the six year investigation revealed that from 2010 to 2014, “the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.”  The purported motivation for this national industry leader in tree trimming and brush clearance for power and gas lines – a motivated workforce willing and able to relocate at a national level as needed to respond to weather related events requiring Asplundh crews.

While details of the Administrative Compliance Agreement have not yet been released, given the charges and facts disclosed it is likely the company will be required to take action on a number of fronts.  As noted in the company’s own statement, Asplundh has already taken some corrective action, including:

  • Appointing a Compliance Specialist trained in fraudulent document identification in each Asplundh region nation-wide.
  • Revising hiring procedures to verify each identification examination for every new hire.
  • Investigating every complaint of potentially undocumented workers.
  • Retaining a third party consultant to review actions and procedures.
  • Presenting the company compliance program to ICE for review.

These corrective actions are reminiscent of what we saw with IFCO and changes that IFCO made in 2006 as part of its agreement with ICE.  Recent history has shown us ICE’s unwavering commitment to its investigations and enforcement of immigration laws regardless of the name or party controlling the Oval Office.

What Does This Mean for Your Operations?

The key for all employers is to take all necessary and possible steps that will protect the company from a charge and a subsequent finding of knowingly or intentionally hiring undocumented workers. While all employers may not be able to guarantee full compliance, everyone can and should take steps that will provide an affirmative defense against charges and allegations of willfully employing undocumented workers or simply being careless to the point that a good faith defense cannot be made.   From addressing proper form completion, document retention, remote hires, electronic I-9 vendors and detecting fraudulent documents, there are steps every company can and should take with minimal disruption to operations that can provide an affirmative defense in showing good-faith compliance with Form I-9 IRCA requirements.

Compliance with Form I-9 requirements should be a priority – not an option – for any U.S. employer. All employers, regardless of industry or size, must make a concerted effort to understand the importance of compliance, and make strategic business decisions to limit liability.  Investing the time and resources necessary to develop and implement proper immigration compliance policies and protocols should be on the agenda.  Businesses can begin taking a proactive approach and action on the following fronts:

  • Preventative Audits – Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a “desk audit” or a full on investigation. Remember, if the company has been audited once, you are on the government’s radar with secondary inspections and active investigations a possibility.
  • Train, Train, Train – Human Resource teams and their delegates need to consistently and accurately complete Form I-9s.  Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.
  • Improve or develop policies and procedures – Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more “decentralized” approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities.  When the process is identifiable, then accountability can be, too.
  • Manage compliance – Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals.  For the company it can also mean a PR nightmare.  Dedicating top management level resources to oversee a company’s immigration compliance program should be a top consideration.
  • Prepare for possible workplace disruptions – Whether the current Administration steps up enforcement actions is not really the motivating factor.  As depicted in the excerpt below from the Department of Homeland Security – U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties.  The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.

For more than sixteen years, since the infamous worksite raids under the Bush administration, we have watched enforcement actions increase regardless  of the party controlling the executive branch.  Whether a paticular form of enforcement action becomes more prevalent or not, should your company be investigated, severe losses could occur and planning for potential impacts on workforce availability in advance can prove to be critical to limiting disruption to ongoing operations.

As ICE investigations continue and potentially expand under Presidential Executive Orders or future Presidential Proclamations, it is more important than ever for employers to protect themselves by ensuring that proper immigration compliance policies are in place and in-house audits are conducted on a regular basis to detect potential issues and irregularities. As demonstrated in Asplundh, the stakes are high, employer responsibilities as well as liabilities under Title I, Part A of the Immigration Reform and Control Act of 1986 (IRCA) should be taken very seriously.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Immigration Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis:  A recent active shooter incident at an international airport illustrates both how quickly an incident may be over, yet how ancillary impacts take much longer to resolve. While the shooter was apprehended in less than two minutes, the international airport was shut down for most of a full day, impacting over 500 employees and 10,000 customers, and 20,000 personal items were lost.  The after-action report offers some lessons learned.

At the World Safety Organization International Environmental and Occupational Safety and Health Symposium last month, William G. Thompson, IV, the Occupational Safety & Health Manager and Safety Management System Administrator at Broward County Aviation Department, including the Fort Lauderdale-Hollywood International Airport (Airport), presented the findings from the January 6, 2017 active shooter incident at the Airport.  Fort Lauderdale-Hollywood International Airport Active Shooter Incident and Post-Event Response January 6, 2017 After-Action Report (August 15, 2017) (Report or Findings).  Thompson was at the Airport that day, watched the events unfold, and cooperated in the resolution and the preparation of the Report.

The Report indicates that “on January 6, 2017, a lone gunman intentionally discharged a firearm at the Fort Lauderdale-Hollywood International Airport killing five and wounding six innocent bystanders.  Approximately 90 minutes after the initial incident, speculation of additional firearms discharged in other areas within [the Airport] caused panic and led to a chaotic self-evacuation of persons throughout the airport.”  The Report states that it was developed in accordance with the U.S. Department of Homeland Security’s Homeland Security Exercise and Evaluation Program.  Specifically, the Report analyzes the response, the emergency and operational coordination, and the facility recovery and post event activities.

Factually, the Report shows that the actual shooting event, in the Terminal 2 baggage area,  lasted less than 80 seconds and ended when the “perpetrator ran out of ammunition, laid down on the ground, and surrendered to law enforcement officers at the scene.”  Of the eleven people who were shot, six (6) were wounded, and five (5) were killed.  Approximately 40 others were injured in the panic during the initial shooting event (First Incident). Terminals 1, 3, and 4 remained operational at this time.

The Second Incident started at approximately an hour and a half later, when radio communications indicated unsubstantiated reports of additional shots fired in Terminal 1, and one of the parking garages. As a result, the “response among passengers, tenants, and airport employees triggered uncontrolled and unmanaged self-evacuation of personnel, many of whom ran into secured areas and onto active aprons. Some received minor injuries during the self-evacuation.”  Because of the breach of restricted areas on the airfield during the self-evacuation, and the ongoing investigation of the actual crime scene in Terminal 2, law enforcement began sweeping and clearing each of the four (4) terminals at the Airport to ensure that all areas were clear of any threats and to re-establish secure areas.

Because of the incurrence into secure zones, the FAA issued a ground stop notice closing the Airport to all but emergency flights.  Subsequently, airport operations were officially terminated and all airport roadways were closed to incoming traffic.  Law enforcement continued clearing the rest of the airport until approximately 8:30 PM, over seven hours later. The airport remained closed for the remainder of the day, but reopened to commercial flights early the following day.

This incident provides a good reference for business to consider in developing their own corporate active shooter programs.  For instance, in this case responding airport employees were initially denied access to areas to which access was required to support response operations.  In addition, while the actual shooting incident was over in ninety seconds, during the subsequent response approximately 500 airport employees were interrupted in their jobs, and 10,000 passengers were bused to a nearby facility for food and shelter, and to assist them in connecting to other means of transportation “As result of the chaos that ensued following the shooting, more than 20,000 personal items were left unclaimed at the airport.”  The active shooter incident response must be planned for as well as the incident itself.

The Report provides “Lessons Learned,” including several points to support preparedness within the aviation sector and among aviation stakeholders.  Many of their recommendations are well placed in any industry:

  • Ongoing periodic incident command system training and exercises, support capabilities-based planning, coordination with airport stakeholders, and development of competencies among airport personnel to support critical incident response.
  • Airport emergency plans should be updated and reviewed at least annually or when changes in resources, personnel, or threats occur.
  • Airport emergency plans and/or companion response plans should address a full range of hazards and threats, identify a concept of operations in an incident command system context, and address all areas of the airport including public areas and auxiliary properties, such as rental car facilities.
  • Building relationships with external response partners through advanced planning, training and exercises is vital to support a common understanding of roles, responsibilities, resources, facility design and layout, and communication procedures under single or unified command conditions.
  • Coordination between airports and jurisdictional (city/county/state) emergency management agencies supports emergency response operations through effective communications, resourcing and resource management.
  • Airports should consider developing a written description of airport operations and airport physical layout specifically for external emergency responders who may respond to airport emergencies. Periodic tours for external emergency responders are also recommended to support an effective understanding of resources, evacuation plans, and other potential response needs.
  • Exercises conducted at airports should include active shooter scenarios as well as other locally-relevant hazard and threat scenarios identified local emergency management agencies).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.