Employer Litigation Team Lead
Partner & Yale Graduate
All companies in the United States face compliance obligations with regard to the employees they choose to hire. While employers must be extremely careful to avoid discriminatory practices in the recruitment and hiring processes, they must be equally careful to avoid hiring undocumented workers in violation of federal law. Immigration law violations can not only trigger lawsuits from negatively-impacted employees (or job candidates), but they can trigger federal law enforcement proceedings involving the U.S. Department of Justice (DOJ) and other agencies as well.
Our firm represents employers nationwide in federal immigration compliance litigation as well as litigation involving allegations of discrimination on the basis of national origin. Both types of cases present complex challenges, and both present the potential for significant liability exposure. With vast experience in the federal realm – including prior experience as DOJ prosecutors and top-ranking federal agents – we are intimately familiar with the laws and regulations that apply to employers of all sizes, and we can use our experience to effectively defend employers against all types of immigration-related claims.
Defending Against Allegations of Immigration Compliance Violations and National Origin Discrimination
Our employer defense practice encompasses the representation of companies in all industries in all types of immigration-related lawsuits and law enforcement proceedings. Broadly speaking, most cases fall into one of two categories: (i) alleged immigration compliance violations; or, (ii) alleged discrimination against foreign nationals in the recruitment and hiring processes.
1. Immigration Compliance Violations
Alleged immigration compliance violations can lead to exposure on two fronts: Employers can face lawsuits from employees and job candidates who claim that they were wrongfully deprived of employment opportunities and/or benefits as a result of employers’ unlawful practices, and employers can face law enforcement action by the DOJ, Immigration and Customs Enforcement (ICE), and other federal agencies.
On the civil litigation side, employers often run into trouble when they fail to adequately maintain compliance with regard to the collection and storage of I-9 forms. Even if employees and job prospects are not aware of compliance issues specifically, these types of issues will often lead to mistakes and oversights that can trigger employment-related claims. If an employee or job prospect alleges that he or she was denied employment or other job-related opportunities as the result of an employer illegally hiring undocumented workers, the employer’s liability exposure can be substantial.
With regard to federal law enforcement, I-9 non-compliance is a common trigger for DOJ and ICE investigations. Frequently, these investigations result from allegations and complaints filed by disgruntled job candidates and employees. While smaller-scale violations will generally lead to civil allegations carrying the risk of monetary penalties, large-scale investigations can lead to criminal prosecution of company owners and executives for offenses including:
- Federal immigration compliance violations
- Bringing aliens into the United States
- Unlawfully transporting aliens within the United States
- Concealing or harboring illegal aliens
- Aiding and abetting misrepresentation of citizenship, illegal reentry, and other immigration-related offenses
2. Discrimination Against Foreign Nationals
Employers can also face immigration-related litigation arising out of allegations of discriminating against foreign nationals. National origin discrimination is prohibited under Title VII of the Civil Rights Act of 1964 (Title VII), and the Immigration Reform and Control Act of 1986 (IRCA), “makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based upon an individual’s citizenship or immigration status.”
As explained by the U.S. Equal Employment Opportunity Commission (EEOC), IRCA also, “prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract . . . [and from] refus[ing] to accept lawful documentation that establishes the employment eligibility of an employee, or demand additional documentation beyond what is legally required, when verifying employment eligibility . . . based on the employee’s national origin or citizenship status.”
Collectively, Title VII and IRCA prohibit employers from discriminating against job prospects or employees on the basis of their national origin or immigration status with regard to:
- Job advertising and recruitment
- Job candidate screening, interviewing, and testing
- Employment offers
- Compensation, benefits, and advancement opportunities
- Job assignments and working conditions
As with all forms of discrimination, employers accused of national origin discrimination must build and execute strong defense strategies based on clear documentation. In an ideal scenario, an employer’s policies and procedures will clearly prohibit all types of discrimination in all aspects of hiring and employment, and the company’s training logs and certifications will demonstrate that all relevant employees have been trained on what is and isn’t permitted. The company’s HR records will also clearly show that all job candidates received equal consideration without regard to their national origin or immigration status (except to the extent that the company was complying with federal immigration laws prohibiting the employment of undocumented workers), and that all employment-related decisions were based on lawful considerations. When this is not the case, employers can still defend themselves effectively, but it will be necessary to look to other sources of evidence to avoid liability.
We have experience defending employers against discrimination claims in a broad range of scenarios. Regardless of whether the employee’s allegations are unsubstantiated, an individual supervisor or HR manager acted outside of the scope of his or her permitted activities, or your company’s anti-discrimination policies and procedures are lacking, our attorneys can use their deep federal litigation experience to build an effective defense.
Unlike most other employer defense law firms, at Oberheiden P.C., we have the resources and capabilities required to represent employers in both private civil litigation and federal law enforcement proceedings. With regard to immigration-related issues, this ability to provide representation in both types of proceedings is particularly important. Employee complaints will often trigger DOJ and ICE investigations, and defending employers on multiple fronts requires an integrated and well-informed defense strategy.
As employer defense counsel in federal employee-employer litigation and federal law enforcement proceedings, our results include:
- Securing pre-trial dismissals and summary judgments in civil litigation
- Negotiating favorable and confidential out-of-court resolutions with employees and federal law enforcement agencies
- Terminating federal law enforcement investigations without charges being filed
- Preventing civil investigations from turning criminal in nature
- Winning favorable trial verdicts and having unfavorable trial verdicts overturned on appeal
If your company is being accused of I-9 compliance violations, discrimination on the basis of immigration status or national origin, or any other civil violation or criminal offense related to the employment of foreign nationals, you need to choose a defense firm that is capable of providing effective legal representation. Here are five reasons why employers nationwide choose the federal defense attorneys and former federal agents at Oberheiden P.C.:
1. We Focus Our Practice on Federal Defense
The substantial majority of our practice is devoted to representing companies in federal matters. This includes private civil litigation, federal law enforcement investigations, civil enforcement actions, and criminal prosecutions. We are intimately familiar with the nuanced complexities of federal practice, and we are able to use our experience to our clients’ advantage.
2. We Handle Civil Litigation and Federal Law Enforcement Matters
Employers accused of immigration-related violations and discriminatory practices will often face liability risks on multiple fronts. By representing our clients in civil litigation and federal law enforcement matters, we are able to execute comprehensive and integrated defense strategies that target all possible sources of liability.
3. We Only Hire Senior Attorneys, Litigation Consultants, and Investigators
Our firm is also unique in that we only hire senior attorneys, litigation consultants, and investigators. Our attorneys are highly experienced, and many of our affiliated counsel and investigators are in their second careers after working for the DOJ and other federal law enforcement agencies.
4. We are Able to Provide Efficient Legal Representation Nationwide
With our nationwide network of affiliated attorneys and former federal agents, we are able to provide efficient legal representation nationwide. This means not only that we can represent companies in all federal jurisdictions; but, we are also able to provide cohesive and cost-effective representation for companies that have facilities in multiple locations around the country as well.
5. We Have a Track Record that Speaks for Itself
As a federal defense law firm, we have amassed a substantial track record of protecting employers prior to and during trial. We are proud of our results, and our ability to consistently obtain favorable results is among the main reasons why many of our clients seek our representation on an ongoing basis.
Contact Us to Speak with a Senior Employer Defense Attorney in Confidence
Is your company facing allegations of immigration-related statutory violations or discriminatory practices? If so, we can help. To speak with a senior employer defense attorney at Oberheiden P.C. in confidence, call 888-680-1745 or request a free case assessment online now.