Editor's Note: This is the last of five articles this week by the labor and employment team at the law firm of Wright Lindsey Jennings of Little Rock examining key trends for employers and the workplace in 2017. Below, a quick look at two important employment issues that could arise next year.
LGBT Rights in the Workplace: What's Next for Arkansas?
In the summer of 2015, the U.S. Supreme Court issued a landmark decision affecting the LGBT community, ruling that same-sex couples have a constitutional right to marry. While there were no such watershed LGBT decisions in 2016, several legal issues are working their way through state legislatures and the lower courts.
Title VII
For example, this year several federal courts considered whether to overturn years of precedent and adopt the U.S. Equal Employment Opportunity Commission’s (EEOC) position that Title VII’s prohibition against "discrimination because of sex" includes a prohibition against sexual orientation discrimination.
In oral arguments held in late November, the judges of the Seventh Circuit seemed inclined to rule that Title VII does cover sexual orientation discrimination. It seems inevitable that this question will ultimately have to be resolved by the Supreme Court. Like Title VII, the Arkansas Civil Rights Act (ARCA) does not list sexual orientation or gender identity as a protected class, but Arkansas courts have looked to Title VII when interpreting the ACRA. If Title VII is ultimately found to prohibit sexual orientation discrimination, we can expect plaintiffs to argue that the ACRA should be interpreted the same way.
At the agency level the EEOC under the Obama administration has identified sexual orientation and gender identity discrimination as an enforcement priority. Many have questioned whether that enforcement priority will change under the incoming Trump administration.
Transgender employees’ restroom access is another area in which legal challenges are working their way through the courts.
Bathroom Access
A bathroom access bill similar to the one passed in North Carolina is expected to be introduced in the 2017 session of the Arkansas General Assembly.
North Carolina’s controversial law requires people to use the restroom of the gender assigned to them at birth and is the subject of more than one pending lawsuit.
Some believe North Carolina’s governor lost his re-election bid at least in part because of the bathroom bill, which many business groups opposed. Should such a bill pass in Arkansas, we can expect national attention and reaction similar to that received by North Carolina.
(By Michelle Kaemmerling, a partner at Wright Lindsey Jennings in Little Rock. Her labor and employment practice focuses on employment and complex commercial litigation in state and federal court, and consumer class action lawsuits. Email here here.)
Immigration Law Compliance: Preparing for a Trump Administration
Donald Trump's victory in November has generated many questions for employers — what's going to happen to the Affordable Care Act, or the U.S. Department of Labor's new overtime rule? — but there is one area slated for change in which employers can prepare for now: immigration.
While Mr. Trump’s proposal for "an impenetrable wall" along the southern border has garnered the most attention, his other immigration policies likely will have a more direct and immediate impact for Arkansas employers.
As an employer you might be thinking, "Well, I don’t have any foreign workers, so changes in immigration policy won't affect me, right?" Wrong.
Trump has consistently stated that he wants to deter illegal immigration by "turning off the jobs and benefits magnet" that attracts foreign workers. In other words, he wants to crack down on businesses that employ people without work authorization.
This likely means more worksite enforcement visits from Immigrations and Customs Enforcement (ICE) to check whether there are workers employed without work authorization. Such visits commonly occur by ICE agents who arrive unannounced (or with very little notice) seeking to audit the company's I-9 forms.
To accomplish his goal of increased enforcement, Trump has proposed tripling the number of ICE agents. He's also suggested that E-Verify should be mandatory for all employers (keep in mind that E-Verify is separate from Form I-9; it does not replace it).
In short, employers need to be prepared for an increase in I-9 audits by a beefed-up ICE agency.
During an ICE audit, employers can find themselves in trouble not only if they have unauthorized workers, but (more commonly) because they did not properly prepare or maintain their I-9 forms for each employee. Penalties can be steep; fines generally start around $200 and go up to several thousand dollars per offense. In 2015, a California company was fined more than $600,000 because it failed to properly complete I-9 forms for its employees.
So what should employers do to get ready for a possible audit?
First, you must prepare. You definitely don't want to wait until ICE is on-site demanding to see your I-9 forms. Therefore, employers would be wise to conduct an internal I-9 audit to identify and correct potential problems now. In fact, an annual internal I-9 audit is on ICE's list of "Best Employment Practices."
If you need another reason to conduct an internal audit, keep in mind that you'll be given safe harbor if ICE discovers an unauthorized worker, but only if you have properly prepared and maintained your I-9 forms.
Unfortunately, audits can create more problems when employers choose to perform them themselves and then commit mistakes that lead to further violations. Common mistakes include filling out new I-9s for employees and throwing the old ones away, making revisions to I-9 forms without signing and dating the changes, and preparing new I-9 forms to correct mistakes and backdating them so they appear to be timely.
Even if these mistakes are "innocent," they can lead to stiff fines.
Therefore, the better practice may be to engage an outside firm to perform the audit, especially if it's the company’s first audit or if the company suspects there may be issues.
Employers can also use an external audit as an opportunity to update I-9 policies and to train compliance employees on proper procedures to prevent future mistakes.
While the future of employer regulations may be uncertain, conducting an internal I-9 audit is an easy step employers can take to ensure they are complying with both current immigration law and likely changes by the Trump administration.
(By Neemah Esmaeilpour, who heads up the immigration law practice at Wright Lindsey Jennings in Little Rock and is a member of the Labor & Employment team. Email him here.)