Asian Journal- The Filipino-American Community Newspaper

YOU are an employer. Perhaps a home health-care provider or other small business. Through years of hardwork and business savvy, your business has grown. You have hired local employees, imported talent through the H1-B visa program, and perhaps have even sponsored your employees for lawful permanent residence. Some of your employees have work-permits. Some don’t. Your immigration lawyers have informed you, albeit erroenously, that USCIS (INS) will not come after you if your employees are grandfathered under 245i. These same lawyers, however, have neglected to inform you of other federal and state agencies, not to mention hungry plaintiff’s-lawyers will. In light of the foregoing, this article is for you.

Downward economies tend to spawn the filing of lawsuits, including both legitimate and frivolous ones. As a result, employers, especially small businesses, can never be too careful. Home health-care facilities are a natural target for the trial lawyer and her client(s). Your personal and business reputations, not to mention your wallet, are on the line. To that end, there are several things you, as an employer, should be aware of.

The State of California is an at-will employment state. What this means is that you have the right to terminate your employees with or without cause. It means that your employees have the right to quit, with or without cause or even giving you notice. The theory behind at-will employment is that it promotes competition in the marketplace by promoting mobility of employees and the hiring of talented or even unskilled workers. The days of your employees feeling "obligated" to you on account of your petitioning them for an H1-B or even sponsoring them for a green-card are over. In fact, it is these very same employees that are more likely to sue you. Why not? They can earn money without working. They can feign disability problems and find a lawyer and a chiropractor willing to support their claims. Put simply, they can get paid.

We are not suggesting you refrain from sponsoring employees as non-immigrants or immigrants. Instead, we are suggesting that you be aware of your rights and the rights of your employees. We are suggesting that you conduct yourself and your business legally and ethically. We are suggesting that you replace the perception that "no one else but illegal aliens will do the job that you have to offer them" with the motivation to get your business in-line with state and federal law. This motivation will be rewarded with increased productivity of your employees, future increased profit margins, and most importantly, peace of mind. We are suggesting that you be an example instead of being made and example of.

Your employees have rights. These rights include but are not limited to the right to earn a federally mandated minimum wage. Your employees have the right to work in a non-hostile environment, free of sex, race and age-based discrimination. They have the right to earn overtime, unless they are in an exempt position. They have the right to sue you on behalf of themselves and other employees for wage and hour violations.

Your business competitors have the right to sue you for unfair business practices and alleged violations of the RICO statute claiming that it is impossible to compete with you since you hire illegal aliens. Your competitors may inform the Civil Rights Division of the United States Department of Justice that you have committed I-9 violations, other "document abuses" and/or other "unfair immigration related employment practices ("UIREP’s"). That you have been discarding "mismatch" letters from the Social Security Administration that inform you that one of your employees (or perhaps many) has a social security number that is erroneous. With a predicted paradigm shift from the SSA to "enforcement" instead of "benefits", your concern is reasonable.