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Before founding Brody and Associates, Bob was a Managing Partner for one of the largest Management Labor and Employment law firms in the United States, Jackson Lewis.\r\n\r\nBob was born in New York, New York. He graduated Magna Cum Laude with honors in Economics from Kenyon College in Ohio in 1979. In 1982, he graduated in the top third of his class from Vanderbilt University School of Law in Nashville, Tennessee. He is licensed to practice law in Connecticut, New York, Michigan and Illinois, as well as admitted to nine United States District and Circuit Courts. Bob is an AV rated lawyer, which is the highest rating awarded by Martindale-Hubbell, a national directory of attorneys. The “AV” rating represents “Very high to preeminent” status, and is awarded based upon peer review.\r\n\r\nBob has been in private practice for over thirty years. He has represented both public and private sector entities across the United States. He works in all industries and with companies that are leaders in their own industry, as well as with developing companies. In addition to providing daily counsel to management on Labor and Employment issues, such as the ADA, FMLA, workplace violence and alternative dispute initiatives, Bob represents employers before Federal, State and Local civil rights agencies and in court.\r\n\r\nAmong the clients that have asked Bob to be their counsel are one of the largest fast food chains in the world, the world’s largest picture moulding manufacturer and distributor, a leading women’s fashion design house, one of the largest petroleum companies in the world, a tier one parts supplier to the Japanese auto industry, a management company representing world renowned entertainers, multi-billion dollar utilities, and many more.\r\n\r\nBob presents seminars nationally and locally on Labor and Employment Law and related topics. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Bob is a contributor to some of the leading treatises in his field, including How Arbitration Works, The Developing Labor Law, and Employment Discrimination Law. Bob has also had numerous labor and employment law articles published on the Internet and in periodicals.\r\nBob is very active with charitable endeavors. He is the former Volunteer Chairman of the Board of the Stamford Chapter of the American Red Cross. He also sits on the board of directors of Temple Israel in Westport, Connecticut, and was an officer there.\r\n\r\nTo contact Bob, please email him at rbrody@brodyandassociates.com, or call him at 203-965-0560.","imageLarge":"http://www.law.com/contrib/content/uploads/2014/03/Robert-G.-Brody_avatar_1394738238-136x136.jpg","webUrl":"/author/profile/-/"},{"name":"Alexander Friedman","description":"","imageLarge":"https://secure.gravatar.com/avatar/f16d6fc2845f417ea0e93a3f2b6cd37d?s=136&d=mm&r=g","webUrl":"/author/profile/alexander-friedman/"}],"publication":"Law Journal Newsletters","kicker":"Features","kickerNode":[{"name":"Features","slug":"features-kicker","uri":"/features/","sectionName":"Features"}],"prettyDate":"September 02, 2017","pubDate":"2017-09-01 24:02:22:000","modifiedDate":"","isDownload":"false","primaryCategory":{"channelName":"","sectionName":"","name":"","uri":"","slug":"","channelUri":""},"tags":[],"image":{"uri":"https://images.lawjournalnewsletters.com/contrib/content/uploads/sites/382/2017/09/donald_trump3.jpg","width":"620","height":"372"},"embed1":"","embed2":"","summary":"Possible Regulatory Enforcement Against Business After All

Immigration is now the focus of the Trump administration. Last year, ICE released \"Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.\" Employers would do well to review and familiarize themselves with it. Additionally, employers should also seek the advice of competent counsel to ensure their self-audits are useful without creating the smoking gun that the government audits are hoping to find.","categories":[{"name":"Employment Law Strategist","uri":"/ljn-newsletters/employment-law-strategist/","channelName":"LJN Newsletters"},{"name":"Features","uri":"/features/","channelName":"Kicker"},{"name":"Immigration Law","uri":"/immigration-law/","channelName":"Topics"},{"name":"LJN Newsletters","uri":"/ljn-newsletters/","channelName":"LJN Newsletters"}],"bodyArray":["

Ever since Donald Trump was elected President, businesses throughout the United States have expected a lessening of the pervasive regulatory regime in place under the Obama Administration. This expectation has come as a result of President's Trump's own rhetoric, and comments by key members of his Administration. President Trump has publicly stated his opinion that “Excessive regulation is killing jobs.” In addition, former White House Chief Strategist Stephen Bannon had voiced the goal of the “deconstruction of the administrative state.” However, employers should expect one major exception: immigration.

","

The Obama Years

","

Under President Obama, the federal government attempted to overcome the Congressional gridlock preventing passage of new legislation through two primary means: 1) issuing executive orders directing administrative agencies to promulgate new, stronger regulations on key issues without the need of legislative approval; and 2) increased/stricter enforcement of existing laws and regulations. This strategy manifested itself in multiple ways. Wage and hour and other forms of employment-related audits and investigations increased considerably during President Obama's terms in office. Additionally, his Department of Labor promulgated changes to multiple significant regulations, including the near-doubling of the white-collar exemption salary threshold and the narrowing of the “advice” exception to the Labor Management Reporting and Disclosure Act of 1959. With respect to immigration, President Obama stepped up audits of employers' Form I-9 records to crack down on businesses employing illegal aliens.

","

Last year, before President Trump took office, the courts struck down the updated regulations affecting the white-collar exemption and the advice exception issue. When President Trump took office, he instructed his administration to take limited, if any, action to appeal the rulings. But not so for the immigration issues. To the contrary, President Trump has already taken action with respect to immigration.

","

Trump, Immigration and Employers

","

On Jan. 25, 2017, President Trump issued an Executive Order titled “Enhancing Public Safety in the Interior of the United States.” In this wide-ranging Executive Order, President Trump set out the policy of the Executive Branch with respect to immigration; set enforcement priorities; and provided for a significant increase in the number of immigration officers. We believe this will significantly affect employers.

","

Specifically, President Trump's Executive Order promises to “Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens … ” and “ Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States.” In furtherance of these and other policies set forth in the Executive Order, President Trump directed agencies “to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.”

","

In conjunction with these goals, Section 7 of the Executive Order instructs the Director of U.S. Immigration and Customs Enforcement (ICE) to “take all appropriate action to hire 10,000 additional immigration officers.” Considering ICE employed nearly 12,000 agents in 2016, this is an increase of over 80%! This enormous surge in immigration officers will mean the government will have tremendous resources at its disposal to crack down on employers who hire illegal aliens. We believe this crackdown will take two main forms.

","

Worksite Raids

","

Under the Trump Administration, we are already seeing a focus on worksite raids by immigration agents. Earlier this year, news outlets reported that ICE conducted raids in homes and workplaces in multiple states. For instance, the Chicago Tribune reported a statement by ICE that its worksite enforcement program will continue “the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.”

","

We expect this trend to continue. Along with possible repercussions stemming from being caught employing unauthorized workers, businesses may also experience loss of employees from the raids (and fear of more raids from other employees with immigration concerns), and loss of customers due to the bad press of being caught in government raids.

","

Continued Focus on I-9 Audits

","

Another notable provision of the Executive Order calls for the Secretary of Homeland Security to “ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.” This last part is particularly noteworthy for employers.

","

Penalties for committing employment-related immigration violations can be steep. Penalties for violating the law prohibiting hiring or continuing to employ individuals knowing they are (or have become) not authorized to work in the United States can range between $548 and $4,384 per unauthorized alien for businesses that are first-time offenders, between $4,384 and $10,957 per unauthorized alien for second time offenders, and between $6,575 and $21,916 per unauthorized alien for businesses committing any further offenses.

","

In addition, there can also be penalties for paperwork violations —€ improperly filling out immigration-related employment documents. Failing to comply with Form I-9 employment verification requirements can result in fines between $220 and $2,191 per form. Even failing to inform the Department of Homeland Security of a “Final Nonconfirmation” of an employee's employment eligibility can result in a $763 to $1,527 penalty per violation. A Final Nonconfirmation is a final case result in E-Verify which indicates E-Verify could not “verify an employee's employment eligibility after an employee has visited an SSA field office or contacted [the Department of Homeland Security].” Of course, criminal penalties of $3,000 per unauthorized alien can also be assessed against employers who engage “in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens” are also possible.

","

Employment-related immigration penalties can add up quickly. For instance, Abercrombie & Fitch famously paid over $1 million to ICE due to Form I-9-related issues.

","

Based on the Administration's first 100 days, employers should take note. It is obvious the current Administration intends to continue or even expand further the increased rate of Form I-9 audits which began during the Obama Administration. In addition to stepping up worksite enforcement raids, President Trump's immigration strategy will also include a focus on investigating employers to ensure compliance with immigration-related verification, documentation, and record-keeping requirements.

","

What Should Employers Do?

","

We believe this Executive Order indicates a two-pronged approach to immigration enforcement in the employment context by the Trump Administration. Employers should expect both an increase in worksite enforcement raids and a significant amount of immigration-related audits. The 10,000 additional agents that the Executive Order empowers ICE to hire should provide the needed manpower to carry out this ambitious plan. To prepare, employers should consider conducting an internal audit to ensure their immigration-related practices are in compliance with all applicable laws and regulations.

","

Of course, you must take care not to conduct an audit in a manner that could be seen as discriminatory or retaliatory —€ choosing which employees to audit based on citizenship status or national origin, for instance, could come with its own negative consequences. And all of this must be done in a way to avoid creating a record of non-compliance that a government audit would immediately uncover.

","

Last year, ICE released “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.” Employers would do well to review and familiarize themselves with it. Additionally, employers should also seek the advice of competent counsel to ensure their self-audits are useful without creating the smoking gun that the government audits are hoping to find.

","

*****
Robert G. Brody is the founding member of Brody and Associates, LLC, a Labor and Employment Law firm that represents management. Alexander Friedman is an associate with the firm. The views expressed in this article are those of the authors and not necessarily those of their clients or other attorneys at the firm.

"],"altLangHeadline":"","altLangBodyArray":[],"slides":[]},"youmightlike":[{"uri":"/2018/01/01/third-circuits-paid-breaks-ruling-a-bright-line-but-not-an-open-door/","title":"Third Circuit's Paid Breaks Ruling a Bright Line, But Not an Open Door","byline":"David Gialanella","authors":[{"name":"David Gialanella","description":"David Gialanella, Editor-in-Chief, Business of Law and The American Lawyer, has been with ALM since 2010 in various roles. He previously managed the New Jersey Law Journal and oversaw all of ALM's regional brands. 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Brody is the founding member of Brody and Associates, LLC, a Labor and Employment Law firm which represents management, founded in 1997. Before founding Brody and Associates, Bob was a Managing Partner for one of the largest Management Labor and Employment law firms in the United States, Jackson Lewis.\r\n\r\nBob was born in New York, New York. He graduated Magna Cum Laude with honors in Economics from Kenyon College in Ohio in 1979. In 1982, he graduated in the top third of his class from Vanderbilt University School of Law in Nashville, Tennessee. He is licensed to practice law in Connecticut, New York, Michigan and Illinois, as well as admitted to nine United States District and Circuit Courts. Bob is an AV rated lawyer, which is the highest rating awarded by Martindale-Hubbell, a national directory of attorneys. The “AV” rating represents “Very high to preeminent” status, and is awarded based upon peer review.\r\n\r\nBob has been in private practice for over thirty years. He has represented both public and private sector entities across the United States. He works in all industries and with companies that are leaders in their own industry, as well as with developing companies. In addition to providing daily counsel to management on Labor and Employment issues, such as the ADA, FMLA, workplace violence and alternative dispute initiatives, Bob represents employers before Federal, State and Local civil rights agencies and in court.\r\n\r\nAmong the clients that have asked Bob to be their counsel are one of the largest fast food chains in the world, the world’s largest picture moulding manufacturer and distributor, a leading women’s fashion design house, one of the largest petroleum companies in the world, a tier one parts supplier to the Japanese auto industry, a management company representing world renowned entertainers, multi-billion dollar utilities, and many more.\r\n\r\nBob presents seminars nationally and locally on Labor and Employment Law and related topics. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Bob is a contributor to some of the leading treatises in his field, including How Arbitration Works, The Developing Labor Law, and Employment Discrimination Law. Bob has also had numerous labor and employment law articles published on the Internet and in periodicals.\r\nBob is very active with charitable endeavors. He is the former Volunteer Chairman of the Board of the Stamford Chapter of the American Red Cross. He also sits on the board of directors of Temple Israel in Westport, Connecticut, and was an officer there.\r\n\r\nTo contact Bob, please email him at rbrody@brodyandassociates.com, or call him at 203-965-0560.","imageLarge":"http://www.law.com/contrib/content/uploads/2014/03/Robert-G.-Brody_avatar_1394738238-136x136.jpg","webUrl":"/author/profile/-/","jobTitle":""},{"name":"Alexander Friedman","description":"","imageLarge":"https://secure.gravatar.com/avatar/f16d6fc2845f417ea0e93a3f2b6cd37d?s=136&d=mm&r=g","webUrl":"/author/profile/alexander-friedman/","jobTitle":""}],"prettyDate":"January 01, 2018","readtime":"11","image":{"uri":"https://images.lawjournalnewsletters.com/contrib/content/uploads/sites/382/2018/01/2018.jpg","width":"562","height":"372"},"summary":"President Trump had an eventful first year in the labor and employment arena. With his first year in office now wrapping up, this is a perfect time to look back at how the Trump Administration's policies have shaped labor and employment law issues at both the federal and state level, and where we expect to go in 2018."},{"uri":"/2018/01/01/how-to-avoid-the-pitfalls-of-a-bad-sexual-harassment-policy/","title":"How to Avoid the Pitfalls of a Bad Sexual Harassment Policy","byline":"Erin Mulvaney","authors":[{"name":"Erin Mulvaney","description":"","imageLarge":"https://secure.gravatar.com/avatar/f16d6fc2845f417ea0e93a3f2b6cd37d?s=136&d=mm&r=g","webUrl":"/author/profile/erin-mulvaney/","jobTitle":""}],"prettyDate":"January 01, 2018","readtime":"7","image":{"uri":"https://images.lawjournalnewsletters.com/contrib/content/uploads/sites/382/2017/12/harassment3.jpg","width":"559","height":"372"},"summary":"How can companies make sure they have sexual harassment policies in place to protect interests and employees? The authors talked to several attorneys about common pitfalls and the lay of the land in the corporate environment right now. Here are highlights from those conversations."},{"uri":"/2018/01/01/employee-claims-in-bankruptcy-pose-significant-liability-exposure-2/","title":"Employee Claims in Bankruptcy Pose Significant Liability Exposure","byline":"Shane G. Ramsey and David M. Barnes, Jr.","authors":[{"name":"Shane G. Ramsey","description":"","imageLarge":"https://secure.gravatar.com/avatar/f16d6fc2845f417ea0e93a3f2b6cd37d?s=136&d=mm&r=g","webUrl":"/author/profile/shane-g-ramsey/","jobTitle":""},{"name":"David M. 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Indeed, there are litanies of potential pitfalls for companies that file for bankruptcy without strictly following the requirements of federal or state employment laws."},{"uri":"/2017/12/01/workplace-bias-and-gender-pay-equity-in-silicon-valley-2017/","title":"Workplace Bias and Gender Pay Equity in Silicon Valley, 2017","byline":"Eric Akira Tate and Kathiana Aurelien","authors":[{"name":"Eric Akira Tate","description":"","imageLarge":"https://secure.gravatar.com/avatar/f16d6fc2845f417ea0e93a3f2b6cd37d?s=136&d=mm&r=g","webUrl":"/author/profile/eric-akira-tate/","jobTitle":""},{"name":"Kathiana Aurelien","description":"","imageLarge":"https://secure.gravatar.com/avatar/f16d6fc2845f417ea0e93a3f2b6cd37d?s=136&d=mm&r=g","webUrl":"/author/profile/kathiana-aurelien/","jobTitle":""}],"prettyDate":"December 01, 2017","readtime":"10","image":{"uri":"https://images.lawjournalnewsletters.com/contrib/content/uploads/sites/382/2016/10/gender_gap.jpg","width":"616","height":"372"},"summary":"It was only a couple of years ago that a jury rejected Ellen Pao's gender discrimination claims and rendered a defense verdict in favor of her former employer, a prominent Silicon Valley venture capital firm. Now, issues of bias and pay equity are again taking center stage, with almost daily media reports about Silicon Valley's gender problem and a continuing list of companies and notable Silicon Valley figures being taken to task with allegations of inappropriate conduct toward women."},{"uri":"/2017/12/01/the-challenges-of-regulating-employee-speech/","title":"The Challenges of Regulating Employee Speech","byline":"Jeffrey S. Klein and Nicholas J. Pappas","authors":[{"name":"Jeffrey S. Klein","description":"","imageLarge":"https://secure.gravatar.com/avatar/f16d6fc2845f417ea0e93a3f2b6cd37d?s=136&d=mm&r=g","webUrl":"/author/profile/jeffrey-s-klein/","jobTitle":""},{"name":"Nicholas J. 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It is vital that law firms and those in related industries ask the right questions about AI security to protect their clients and their reputation.","description":"What Law Firms Need to Know Before Trusting AI Systems with Confidential Information\nIn a profession where confidentiality is paramount, failing to address AI security concerns could have disastrous consequences. 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ARTICLE/2017/09/01/is-trump-the-new-obama/Law Journal Newsletters2017-09-02 00:02:22

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