Category: Employment policies and procedures

How to Navigate the Administration’s Focus on Deporting Illegal Immigrants


 Mark Blondman and Gabrielle I. Weiss ●

As reported in all forms of media, the Trump administration has launched a nationwide blitz of immigration enforcement that is not likely to abate in the short term. Raids, which the administration has characterized as focused on detaining and deporting those who pose a threat to public safety and national security, have been conducted in New York City, Chicago, Newark, New Jersey, the suburbs of Atlanta, Boston, Denver, Los Angeles, San Francisco, and Austin and San Antonio, Texas, among other places. More than 2,000 arrests have been reported by Immigration and Customs Enforcement (“ICE”), with close to 1,000 detainers (a request that a law enforcement agency hold an inmate for another agency) lodged since this past weekend. Significantly, while immigration enforcement was typically handled almost exclusively by ICE, the recent raids have seen participation by agents of the Federal Bureau of Investigation (“FBI”), Drug Enforcement Administration (“DEA”), the Bureau of Alcohol, Tobacco, Firearms and Explosives, as well as the U.S. Marshals Service. 

In another development, ICE has reversed a policy in place during the Biden administration and now permits its agents to raid “sensitive locations” including schools, hospitals, and churches, leading the U.S. Conference of Catholic Bishops to condemn the new policy as “contrary to the common good” and to declare that it would “turn places of care, healing, and solace into places of fear and uncertainty for those in need, while undermining the trust between pastors, providers, educators, and the people they serve,” and “will not make our communities safer.”

It is inevitable that the administration’s focus on securing the borders and preserving employment opportunities for individuals who are lawfully authorized to work in the country will spill over to the workplace, especially in industries that traditionally employ significant numbers of immigrant workers. We anticipate that there will be enhanced enforcement of the Immigration Reform and Control Act of 1986 (“IRCA”), with emphasis on audits of I-9 forms and removal of undocumented individuals from the workplace. Enforcement actions focusing on the employment relationship can take the form of scheduled document (I-9) audits, which are preceded by receipt of a Notice of Inspection that gives the employer three business days to provide requested documents, as well as unscheduled workplace raids. The remainder of this alert will provide guidance to employers when an agent of ICE, or other law enforcement personnel, show up at a worksite seeking documents or access to the entity’s workers. 

WHAT TO DO BEFORE IMMIGRATION AGENTS SHOW UP AT YOUR DOOR

There are certain action items all employers should take now in anticipation of a visit from ICE or Customs and Border Protection (“CBP”). They include:

  • Appoint a person with authority to be the primary contact in the event of a visit by ICE/CBP or other federal, state, or local law enforcement agencies and conduct necessary training to ensure the point person is prepared to:
    • Review warrants,
    • Contact counsel for advice, and
    • Monitor agents while they are on site and document what occurs during the visit.
  • Perform an internal audit of I-9s and other documents that an agent may request to review.
    • Confirm you have I-9s for all current employees and those who recently have been terminated from employment (and ensure that they have been properly completed and that the forms, as well as any documents that the employee presented in support of their I-9 declarations and maintained by the employer, are stored apart from personnel files), destroying those forms that the employer is no longer required to maintain; 
    • Make sure you have a list that contains the names of all current employees and should have access to payroll records as well as quarterly wage and hour reports;
    • To the extent you use E-Verify, have confirmations available. 
  • Consider utilizing E-Verify, a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States, for all new hires.
  • If you utilize contractors, leased workers, or temporary employees, review your vendor contract to ensure the requisite safeguards are in place confirming service providers are legally authorized to work in the United States. 
  • To the extent you have a question about an employee’s immigration status, do not panic or jump to conclusions. Have a conversation with the employee and come up with a plan of action.

IF YOU RECEIVE A NOTICE OF INSPECTION (BY CERTIFIED MAIL OR DELIVERED IN PERSON)

  • Review the Notice of Inspection to identify what documents are being requested and share with counsel to review what needs to be produced. Don’t panic.
  • Gather the documents requested in the Notice within the three-business day window and do not plan to offer any additional documents or information other than those required for inspection; do not waive your right to the three-day waiting period.
  • Make copies of all documents being made available for inspection, as the ICE agent will want to review originals.
  • Make a record of all documents that are provided to the agent for inspection.
  • Make notes of any alleged noncompliance raised by the agent during the inspection and do not make any untruthful statements about the company’s immigration policies or I-9 collection processes.
  • Review any identified compliance issues with counsel.

IF AN ICE AGENT OR AGENT OF ANOTHER FEDERAL, STATE, OR LOCAL ENFORCEMENT AGENCY SHOWS UP AT YOUR DOOR

  • Demand to see a judicially issued warrant permitting a search. If there is none, then you can refuse ICE/CBP entry into your workplace. 
  • If there is a warrant, then review it with counsel to ensure it is valid. This includes checking that it is signed by a judge or magistrate, has the correct address for the workplace to be searched, provides a duration for the search, and describes the scope of the search. 
  • There are different types of warrants or subpoenas that might come into play, including:
    • A judicial warrant, which allows ICE/CBP to conduct any search as authorized by the warrant. You must comply with a valid judicial warrant. 
    • An administrative warrant, which allows ICE/CBP to conduct an arrest or seizure. Administrative warrants do not authorize searches and therefore you do not need to permit a search in this instance.
    • A judicial subpoena, which allows an enforcement agency to request information and/or documents from third parties, like you the employer. Unless you have a legitimate basis to oppose the subpoena, you should generally comply with it. 
    • An administrative subpoena, which similarly allows ICE/CBP to request information and/or documents from third parties, like you the employer. You do not need to comply with an administrative subpoena, penalties may occur only after the issuer takes additional steps to enforce the subpoena in federal court.
  • If the judicial warrant is valid, you should comply with the request for inspection.
  • During the inspection, you should watch the agent the entire time.
  • Document everything:
    • Record the names and ID numbers of all agents, and
    • Memorialize any conversations with agents.
  • If any employee is arrested, ask the agent where the employee is being taken.

The Administration’s emphasis on enforcement of immigration laws can be costly for employers, since fines and penalties for I-9 noncompliance are significant, and the disruption of work caused by removal of employees from the workforce can be devastating. Attorneys in the Labor & Employment practice group at Blank Rome are prepared to assist as issues arise.

New Year, New FTC Chair, and Renewed Focus on Non-Compete Agreements

 Anthony B. Haller, Theresa A. Topping, and Kevin M. Passerini ●

It is nearly impossible to think about the Federal Trade Commission (“FTC”) without thinking about the chaos caused by the non-compete ban it approved last year over vociferous dissent only to have the ban vacated and set aside nationwide by the Northern District of Texas. Curiosity remains about what the impact of the change in administration will have on the FTC’s approach to this issue of paramount importance to employers. But with President Trump’s appointment of Andrew Ferguson to lead the FTC, what follows is some insight on the current state of play and the FTC’s probable mindset.

Where We Were Last Year

As a recap, the FTC’s “Final Rule” announced on April 23, 2024, would have banned nearly all non-compete provisions and provisions functioning as non-competes (in the FTC’s view). That Final Rule, which was set to go into effect on September 4, 2024 (the “Effective Date”), would have impacted not only traditional restrictive covenant agreements with employees and contractors but likely also agreements with employee equity holders as well as claw-back and repayment agreements with employees presented with signing bonuses or training and education opportunities.

As expected, businesses and trade organizations swiftly challenged the Final Rule, with lawsuits filed against the FTC in Pennsylvania, Florida, and Texas seeking to set aside the Final Rule: a lawsuit brought by a tree-service company, ATS Tree Services, LLC in the Eastern District of Pennsylvania; a lawsuit brought by the Properties of Villages Inc.in the Middle District of Florida, and lawsuits brought by tax-advisory firm Ryan, LLC and the U.S. Chamber of Commerce in the Northern and Eastern Districts of Texas, respectively. The lawsuits yielded distinct outcomes. The Texas court preliminarily enjoined enforcement of the Final Rule as to the plaintiff only, pending a final ruling on the merits. The Pennsylvania court upheld the Final Rule. The Florida court preliminarily enjoined the Final Rule as to the plaintiff only, on similar but not identical grounds to the Texas court, even while accepting some of the Pennsylvania court’s analysis.

The limited holdings and contradictory outcomes made the chaos sewn by the FTC even worse in the weeks leading up to the Effective Date. Ultimately, the Texas court provided clarity, issuing its final ruling on the merits and vacating and setting aside the Final Rule nationwide holding that its issuance was outside FTC’s authority granted by Congress and that the Final Rule was otherwise arbitrary and capricious under the Administrative Procedure Act. The FTC has appealed both the Florida and Texas rulings, and the plaintiff in the Pennsylvania ruling voluntarily dismissed its lawsuit after the Texas court ruling.

Continue reading “New Year, New FTC Chair, and Renewed Focus on Non-Compete Agreements”

Steps Employers Should Take After President Trump Revoked Executive Order 11246

 Anthony B. Haller and Theresa A. Topping ●

On January 21, 2025, President Donald Trump issued an Executive Order (“EO”) titled “Ending Illegal Discrimination And Restoring Merit-Based Opportunity” explicitly revoking Executive Order 11246, which  mandated federal contractors comply with certain diversity, equity, and inclusion (“DEI”) related requirements, including the dissemination and enforcement of nondiscriminatory policies, establishing a written affirmative action plan and placement goals for women and minorities, and implementing action-oriented programs for accomplishing these goals.

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Employers Are Extra Grateful This Thanksgiving After Federal Court Sets Aside DOL’s Salary Threshold Increase

Theresa A. Topping ●

Salary threshold. . .$35,568.00. . .the Eastern District of Texas. . .not the classic answers you expect to hear from your loved ones around the Thanksgiving table when you ask, “Hey guys, what are you most thankful for?” While family, friends, food, and a roof over your head are all great, the fact that the United States District Court for the Eastern District of Texas shot down the Department of Labor’s (“DOL”) attempt at increasing the overtime salary threshold to $58,656.00 is right up there for employers.

The DOL’s Not-So-Final “Final Rule”

Back on April 23, 2024, the DOL announced their “final rule,” which entailed a multi-phase increase of the “white-collar exemption” (the executive, administrative, and professional employees (“EAP”)) salary threshold from $35,568.00 to $43,888.00, starting on July 1, 2024, and then up to $58,656.00, starting on January 1, 2025 (with increases automatically occurring every three years thereafter). Notably absent were any changes to the DOL’s “duties” test, which must be analyzed in conjunction with a salary when determining whether an EAP employee is exempt from overtime. At the time of its announcement, the DOL projected their final rule would make four million workers newly eligible for overtime payments and cost employers nationwide roughly $1.4 billion in the first year alone. Being thankful for a $35,568.00 threshold is looking more and more understandable now, isn’t it?

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Massachusetts Governor Signs Pay Transparency Law

Carmen F. Francella III ●

Massachusetts now joins a growing list of states and other localities with pay transparency laws.

On July 31, 2024, Massachusetts Governor Maura Healey signed into law Bill H.4890. The Bill contains new pay transparency and wage reporting requirements applicable to certain employers with employees in Massachusetts. The law requires employers with 25 or more employees in the Commonwealth to disclose salary range information on job postings, and to provide pay range information to current employees in certain circumstances.

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California’s New Workplace Violence Prevention Law: July 1, 2024, Compliance Deadline—Are You Ready?

Caroline Powell Donelan ●

The effective date of California’s Senate Bill 553 is fast approaching, and the law covers nearly every employer and every employment facility in California with the exception of healthcare facilities and other facilities governed by different legal standards, most remote workers, and businesses with fewer than 10 employees.

Whether you are based in California or operate a worksite in the state with more than 10 employees, compliance is mandatory. The requirements, set forth in SB 553, are detailed and complex, establishing rules for planning, logging, and record-keeping, as well as worker training, which will all be overseen and enforced by the California Occupational Safety and Health Act (“Cal/OSHA”).

Specifically, California employers must meet four broad categories of obligations that go into effect July 1, 2024, including:

  1. The creation of a workplace violence prevention plan.
  2. The creation of a workplace violence incident log.
  3. Training requirements.
  4. Recordkeeping requirements.
Continue reading “California’s New Workplace Violence Prevention Law: July 1, 2024, Compliance Deadline—Are You Ready?”

Finally!? DOL Cranks Up Exempt Salary Threshold Near $60,000

Jason E. Reisman ●

We’ve all known this day was coming—it was just a matter of time. From the moment the Biden Department of Labor (“DOL”) announced that the Trump DOL’s 2020 increase to the Fair Labor Standards Act salary threshold for the so-called “white collar” exemptions (primarily the executive, administrative, and professional exemptions (“EAP”)) was not good enough, it became crystal clear that a new rule was in the works.

Although it took the DOL some time to put its thoughts together, it issued the proposed new rule in September 2023, and awaited public comments—33,000 of those followed. After reviewing each of the comments, the DOL announced its final rule yesterday. Here are the basics:

  • It will be effective as of July 1, 2024.
  • There are no changes to the duties tests (perhaps the only positive news).
  • The new salary thresholds for the EAP exemptions and the highly compensated employee (“HCE”) exemption essentially will be phased in beginning on July 1, 2024, and then fully implemented on January 1, 2025.
    • Note: On July 1, 2024, the DOL is implementing an interim increase to the thresholds (as noted below) that is based on current earnings data using the methodology established in the Trump DOL’s final rule.
    • Then, on January 1, 2025, the DOL will use the new methodology to establish the full salary thresholds.
  • Beginning on July 1, 2027, and every three years thereafter, the DOL will update the salary thresholds to align with the then-current earnings data.
  • Here’s a chart based on the DOL’s FAQ that provides the relevant data points:
DATESTANDARD SALARY LEVELHCE ANNUAL COMPENSATION THRESHOLD
Before 7/1/2024$684/wk ($35,568/yr)$107,432
7/1/2024$844/wk ($43,888/yr)$132,964
1/1/2025$1,128/wk ($58,656/yr)$151,164
1/1/2027 (and every three years thereafter)TBD based on 35th percentile of full-time salaried earnings in lowest Census regionTBD based on 85th percentile of full-time salaried employees nationally

Where’s the good news for employers, you ask? Uh, there really isn’t any … except maybe that the new salary threshold is not immediately rising to $60,000 and the expectation that any one of a number of business organizations is likely to challenge the new rule, perhaps using a number of the theories raised in the fighting that ultimately resulted in the rule being blocked by Judge Mazzant in the federal court in the Eastern District of Texas.

If the above did not wake you up, please keep in mind that the DOL has projected that costs for employers in the first year of this new rule will be about $1.4 billion and the rule will make four million workers newly eligible for overtime pay (unless their employer intervenes in some fashion).

So, what do you do? Grab your popcorn and watch the challenges to the new rule roll in? Maybe—but you should start considering those currently exempt employees who fall in the “danger zone” between $35,568 annually and $43,888 annually and evaluate whether you can consider a raise to the new threshold or instead need to potentially reclassify them to non-exempt status. Fortunately, that danger zone (leading up to July 1, 2024) is somewhat narrow when compared to what will come on January 1, 2025. At least the phased implementation provides a longer window to watch the anticipated legal challenges unfold. As an added note of caution, you should remember that current state law minimum salary thresholds like those that exist in New York and California, which are significantly higher than those in the DOL rule, continue to apply. Don’t touch that dial!

Keeping Up: Guidance on California’s New Pay Data Reporting for Employers

Natalie Alameddine ●

As most employers with employees working in California or assigned to a California location know, and as we reported in “Big Brother Just Got Bigger: Expanded Pay Data Reporting Expected to Hit the Golden State,” 2022 legislation obligated employers with 100 or more workers to report pay data via separate pay data reports to the agency now known as the California Civil Rights Department (“CRD”). Continuing that trend, in 2023 California statutes enhanced the existing pay equity rules by requiring employers to post salary ranges in job postings, and to provide the same information to their employees upon request.

With the May 8, 2024, deadline for employers to submit their 2023 pay reports quickly approaching, it is important to be aware of the recent changes to the reporting requirements implemented by the CRD. Employers should begin to collect data now and keep these key changes in mind:

  • Employers must now submit information about the number of employees per each employee group who worked remotely. The CRD FAQs define a “remote worker” as “a payroll or labor contractor employee who is entirely remote, teleworking, or home-based, and has no expectation to regularly report in person to a physical establishment to perform work duties.” Hybrid workers who appear in person for any portion of time would not be considered remote workers for pay data reporting purposes.
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2024 Brings Change for New York Employers

Mara B. Levin and Anthony A. Mingione


LEGISLATION

This year brings significant legislative updates recently passed in New York that may impact your business operations. Three of these laws, and a recent Court of Appeals decision, introduce important changes that require attention and potential adjustment of your employment practices.

Worker’s Bill of Rights

Effective July 1, 2024, New York City employers must post and distribute a “Worker’s Bill of Rights” notice, informing employees of their rights under federal, state, and local workplace laws—regardless of immigration status. Some of these rights include: Paid Safe and Sick Leave, Minimum Wage, Temporary Schedule Changes, Fast Food Worker Rights, and right to organize.

Employers must provide this notice in English and any other language that is spoken as a primary language by at least five percent of their employees. Failing to meet notice and posting requirements could subject employers to a civil penalty of up to $500.

Read the full client alert on our website.

Employers Get a 2-Year Breather on Complying with the Secure 2.0 Change to Catch-Up Contributions

Daniel L. Morgan ●

Professional photo of Daniel L. Morgan

The Internal Revenue Service (“IRS”) issued Notice 2023-62 last week, which addresses a change made by the SECURE 2.0 Act of 2022 (“Secure 2.0”) to the 401(k) plan rules applicable to so-called “catch-up contributions” that may be made by older plan participants.

Background—Catch-Up Contributions and Roth Contributions

Employers are permitted to write their 401(k) plans to allow employees who are age 50 or older to make catch-up contributions in excess of the annual limit on elective contributions. Therefore, for example, someone who is at least 50 years old in 2023 can elect this year to contribute an additional $7,500 on top of the normal limit of $22,500 that a person who is younger than 50 can elect to contribute.

Employers are also permitted to allow 401(k) plan participants to make their elective contributions as Roth contributions, which go into the plan on an after-tax basis. If these Roth contributions satisfy requirements on how long they must be held in the plan, they ultimately can be distributed, along with earnings on the contributions, tax free.

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