Immigration Policies’ Impact Extending to Employers

By Lehr Middlebrooks Vreeland & Thompson, P.C.

October 30, 2018

The Trump Administration has under taken significant efforts to impact immigration policies  through executive action. If you watch the news, you will often see stories and information regarding the Administration’s “crackdown” on illegal immigration. However, the news has not  highlighted the impact immigration policies are having on employers.

In recent months, the United States Department of Labor has itself cracked down on employers across various industries to ensure they are complying with current immigration laws and policies. However, these measures are not exactly what you might expect. While there has been coverage on the Immigration Customs Enforcement’s raids on workplaces, the DOL’s actions in some situations have actually been helpful to some immigrant workers in the United States. For example, the DOL has recently recovered $2.5 million from various companies in back wages for workers.

In one investigation, the DOL discovered a contractor in North Carolina that paid immigrant  workers at a lower rate than required by law. The H-2B visa program currently mandates a rate that employers can pay immigrant workers and further requires that employers help their immigrant workers get to America from their home countries. However, this employer was   paying immigrant workers based on a lower wage, and in some instances, was not assisting its visa program workers in getting to the country at all.

In another investigation, the DOL obtained  $1.1 million from a staffing company due to unpaid  overtime and minimum wage violations. The DOL discovered the company was not paying its  workers their mandated overtime rate for worked overtime hours. Additionally, the company was found to have not been adequately tracking its employees’ hours resulting in major pay disparities.

The DOL recently completed two other investigations wherein it secured thousands of dollars  for workers across the county due to wage violations.

Despite these “wins” for workers, many of whom are immigrant workers, the DOL is still  committed to, as it says:  “protect[ing] American workers and aggressively confront[ing] visa program fraud and abuse.” In that vein, the DOL’s Wage and Hour division, which has always  been primarily responsible for governing employers’ H-2B wage  practices, is aware of and has approved the Department of Homeland Security and Citizen and Immigration Services to step in and assist in the agency’s visa fraud program. As such, the Department of Homeland Security  has undertaken additional efforts to identify and investigate potential visa fraud and misuse by employers and their workers.

Ultimately, the increased scrutiny to the program has resulted in some employers being   discouraged from utilizing the program to hire foreign workers. It is likely that the Administration ’s efforts to curb immigration, legal or illegal, will continue over the next couple of years. As such, employers that rely on this program need to be prepared for audits regarding their workforce as well as their wage payments and ensuring they are taking all steps to comply with the law.