Tuesday, March 1, 2016

How Would President Trump Affect Your Job?

The following analysis will appear in a journal for lawyers, but may interest ProfLERoy readers.

How would a U.S. President who views discrimination as a virtue reshape employment law? That is the main question posed for employment lawyers who would advise clients during a Trump presidency. While the Trump campaign has been light on policy specifics, it has promised to deport 11 million unlawful aliens, and bar all Muslims from entering the U.S. The candidate has insulted women for menstruation, and raised the Ku Klux Klan from obscurity to mainstream politics. But how, specifically, would these messages translate into employment policies?
Immigration:  If Trump has a signature policy objective, it is to end illegal immigration swiftly and completely. However he accomplishes this goal, employers would face new legal duties and penalties. If Trump proceeded down a “reasonable path” (one that has legal precedent, even if ill-advised), he would use Arizona as a model. The Supreme Court, in Chamber of Commerce of U.S. v. Whiting,[1] upheld a very strict immigration law that requires all Arizona employers to use the federal government’s E-Verify system. The U.S., by contrast, makes E-Verify optional to verify work authorization. This is because E-Verify is not completely reliable.
But that’s just the start to the “reasonable path.” Arizona applies the death penalty to any business that commits two willful violations of immigration law by pulling its license (charter) to do business. This approach is deeply flawed: it over-penalizes employers, and also encourages employers to discriminate— against Latinos, in particular. President Trump might take this approach, with the help of Congress or by executive order.  
There is another “reasonable path” for President Trump: an executive order to debar federal contractors—essentially, many large U.S. companies— from doing business with the U.S. The only thing reasonable about the approach is that presidents have used executive orders extensively to achieve social policy objectives in the workplace. But Trump would be swimming against a stream of Democratic and Republication executive orders that tore down discriminatory barriers. As I explained in Presidential Regulation of Private Employment,[2] President Roosevelt used executive orders to end racial segregation in munitions factories. President Kennedy initiated the concept of “affirmative action” in Exec. Order No. 10,925.[3] The order expanded employer duties beyond refraining from discrimination to promoting “full equality of employment opportunity.” In other words, Trump might use executive orders in reverse, to remove employer obligations for equal opportunity.

But Trump has a proclivity for the unreasonable. He relishes action and boldness, and draws inspiration from Mussolini. So, he could take stronger action by pushing Congress to enact the employment provisions of Arizona S.B. 1070, a harsh law designed to motivate unlawful immigrants to leave the state. More dramatically, he could implement S.B. 1070’s employment provisions in an executive order. The fact that President Obama has made extensive and often questionable use of executive orders, especially in the immigration field, would provide ample pretext for this constitutional usurpation.
The Supreme Court struck down the employment provisions of S.B. 1070 in Arizona v. U.S.[4] The Court ruled that Arizona could not criminalize the employment of illegal aliens because this upset the careful balance that Congress struck in the Immigration Reform and Control Act (IRCA). In that 1986 law, Congress subjected employers and employees to fines when they violate the verification process, and saved criminal sanctions for repeated or severe violations.  
S.B. 1070’s employment provisions were struck down because they interfered with federal law. However, nothing in Arizona v. U.S. precludes Congress from making employers criminally liable for immigration lapses. Bad public policy? Yes, because it discourages businesses from offering jobs by criminalizing the hiring process. Popular with the growing Trump base? Unfortunately, yes. The solution for employers? Take more jobs out of the country, and avoid going to jail for hiring the wrong people.
Trump’s plan to deport 11 million people would create several million job vacancies, especially in industries tied to agriculture, construction, hospitality, and health care. To accomplish this goal, President Trump would need to force employers to uproot these people.
Employers could be required—on pain of a severe penalty—to reverify the status of every employee, from bottom to top in the organization. And re-verify again and again, perhaps on a quarterly basis. If there is a discrepancy between a Social Security number and the person’s name in the Social Security database, Trump could accomplish his aim with a law that requires employers to fire everyone with a mismatch.
Yes, you’re fired… and you, you’re fired… and you, you’re fired, until no unlawful aliens are employed. Trump knows how to fire people; it comes readily to him; and he enjoys it.
The difference between firing a celebrity apprentice and a real employee is that the Social Security database has millions of mismatched records, where a name and number are not properly matched. This large number is due to changes in marital names (marriages and divorces separately inject error into the system). Hyphenated names also create mismatches. Scanning and poor handwriting also introduce errors—and to Trump’s valid point, so does widespread fraud.
But to boil this down, Trump’s zeal to rid America of illegal aliens would compel employers to fire many citizens and authorized aliens, along with people who are not authorized to work. Apart from leaving firms with gaping holes, these shot-gun terminations would get employers into nearly certain trouble for firing workers who have an employment contract or a collective bargaining agreement.
Religious Discrimination: The San Bernardino massacre occurred at workplace where a holiday party was in progress. It was a terror attack perpetrated by supporters of ISIS. But Trump grossly overreacted to the tragedy when he said he would bar all Muslims from entering the United States.
Let’s slow down his idea and see how it would impact employers. Many foreign Muslims work in the U.S. lawfully under EB, H-1B, treaty trader, and other visas. Technology companies likely employ thousands of Muslims from India, Pakistan and other Asian nations. Muslim health care workers ranging from exceptionally accomplished physicians to nurses are employed here on visas. Universities almost certainly employ thousands of Muslim faculty on visas across a wide spectrum of disciplines.
For perspective, a recent U.S. Citizenship and Immigration Services report states that workers from India were granted 82,263 H-1B “initial employment” visas in FY 2014 (see Characteristics of H-1B Specialty Occupation Workers[5]).
About 14% of Indians are Muslims, suggesting that the U.S. granted H-1B visas in 2014 to 11,516 Indian Muslims. Trump’s plan would categorically bar these workers.
Even pro sports would be affected. Ersan Ilyasova is a power forward for the Orlando Magic. He’s good, averaging 11 points and 5 rebounds per game. He is also Turkish and Muslim. The Magic would need to keep him at home during road trips to Toronto because Trump’s entry-bar would prevent him from returning to play in the U.S. And the player would not be able to visit his homeland during the off-season.
Taking Trump literally, if these workers are already in the U.S., they would be immune from his exclusion order. But employers would be unable to hire Muslims who are currently abroad. Muslims who are temporarily out of the U.S.—not necessarily back home, but at an international conference in Vancouver—would be barred re-entry to the U.S. Many Muslim visa-holders in the U.S. would feel trapped here by an irrational policy that denies their re-entry.
There is precedent for this type of prejudice. In the 1870s, the U.S. was gripped by hatred for Chinese workers who came here in an “Oriental invasion,” a term used by the Supreme Court in Chae Chan Ping v. U.S.[6] That ruling sustained the constitutionality of Chinese Exclusion Act. Chae Chan Ping has little negative authority. It remains good law—probably because no one has bothered to talk about it since Congress repealed the Chinese Exclusion Act in 1943. But if President Trump cited Chae Chan Ping as authority to bar foreign Muslims from entering the U.S., he would not be wrong. True to form, however, he would fail to mention that Congress eventually repealed the law, after lawmakers concluded that exclusion of an entire people was unconscionable at a time when Hitler’s Germany was implementing its Final Solution.
Race Discrimination: Donald Trump is not the first public figure to dabble in Ku Klux Klan politics. Others included Sen. Robert Byrd, Justice Hugo Black, and to a lesser degree, Harry Truman. Trump has energized “white heritage” voters, and has given a modicum of respectability to fringe groups that were driven underground. Given his need to satisfy these voters, it’s not hard to think of important race discrimination cases that could be reversed by President Trump’s EEOC.
Under President Reagan, this agency filed a lawsuit against a small manufacturer on the southwest side of Chicago. From 1979 until 1985, O & G hired 87 people—but not one African-American. The reason the agency pulled that case from a large stack of others is that no evidence—other than statistics—indicated intent to discriminate. The EEOC retained an urban planning expert, Dr. Pierre DeVise, who concluded that that African–American availability in the relevant labor market ranged from 22.5% to 31%. The trial court—finding for the EEOC— said that “the statistical probability using standard deviation analysis of no black hires during the period 1979 through 1985 was infinitesimal.” In other words, intentional discrimination was legally inferable from the statistics—a key ruling that has been used in many other cases to unmask stealthy discrimination. The court ordered damages of $378,000. E.E.O.C. v. O & G Spring and Wire Forms Specialty Co.,[7] is the kind of case that Trump’s EEOC might take down.
Gender Discrimination: Since Meritor Savings Bank v. Vinson,[8] the Supreme Court has deferred to the EEOC’s broad definition of “hostile work environment.” That decision was authored by Justice William Rehnquist, with no dissenting opinion. “Hostile work environment” has been interpreted by the EEOC and courts to prohibit demeaning words used against women. Currently, the EEOC advises that “it is illegal to harass a woman by making offensive comments about women in general.” http://www.eeoc.gov/laws/types/sexual_harassment.cfm.
More specifically, courts have ruled that “gender specific” words such as “bitch” and “whore” in the workplace could support a sexual harassment lawsuit. E.g., Reeves v. C.H. Robinson Worldwide.[9] The crux of hostile work environment law is not a PC guide of allowable and prohibited words—it is whether words or behaviors interfere with a woman’s conditions of employment. With this as background, recall that Trump verbally attacked a female Fox News reporter by making her the subject of deeply demeaning “bleeding” insult. While uncommon, situations arise where male managers ridicule and deny privacy to menstruating women, with resulting litigation (e.g., Graces v. R & K Spero Co., LLC). [10]  Trump’s verbal abuse of Megyn Kelly does not translate into a policy as much as it conveys an open disregard for the civil treatment of women at work.
Prognosis: President Trump would create new legal headaches for employers. His bully pulpit would embolden more bullies to express and act on their unlawful workplace biases. More concretely, he would force employers to choose between cooperating with his anti-immigrant, anti-Muslim policies and paying heavily for noncompliance. For the employment law bar, Trump’s election would likely increase billable hours.




[1] 563 U.S. 582 (2011).
[3] 26 Fed. Reg. 1977 (1961).
[4] 132 S.Ct. 2492 (2012).
[6] 130 U.S. 581 (1889).
[7] 38 F.3d 872 (7th Cir. 1993).
[8] 477 U.S. 57 (1986).
[9] 594 F.3d 798 (11th Cir. 2012).
[10] 2009 WL 1814510 (Conn. 2009).

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