2.2 Case Study/Exercise

Case 14. LGA Industries: Employing Undocumented Immigrants

David Martin was excited to start his new position as the manager of staffing, training, and development for LGA Industries, a carpet and rug manufacturer located in a mid-sized Texas town. LGA Industries had been producing well-known and high-quality carpets and rugs for the past 100 years. Over the years, its workforce had grown to just under 2,000 employees. Martin had just completed a master’s degree in Human Resource Management from the University of Texas at El Paso. In the last few years, LGA Industries had found it increasingly difficult to locate and hire employees to meet the growing demand for its products. Their traditional sources of labor were drying up as many high school graduates left the small town to seek employment in places like Dallas and Houston. The pay for unskilled jobs was $8.50 per hour. Martin learned that 45 percent of hires in the last four years consisted of immigrants from Mexico and other Latin American countries. The Latino population of the town, which had been less than 5 percent in 1990, was now about 25 percent.

Martin’s predecessor, who retired last month, had been with LGA Industries for 15 years. Martin was anxious to introduce some of the new and up-to-date HR practices he had been taught at the university. Within his first two months on the job, he was to fill five new plant positions. The company had received a large order that needed to be completed within the next six months. Given the increasing difficulty that LGA had finding employees for new positions, the company had begun using an employment agency. When Martin contacted the agency, they assured him they would have no problem sending him prospective applicants. When five candidates showed up at his office about a week later, Martin was quite impressed with how quickly the agency had responded. When he interviewed the candidates, he found it odd that they were not able to tell him much about their previous employment experience. Three of the candidates appeared to know only a few words of English. Martin decided to talk with the HR manager at LGA Industries about the candidates. He was surprised when the manager told him not too worry—the agency was quite reliable and had sent them good candidates in the past.

Martin was curious and decided to look at the files and records of previous hires. He was not able to locate the I-9 Forms for any of the newly hired Latino employees, nor could he find them on the HR database. Martin knew from his academic training and previous work experience that employers were required to complete an I-9 Form for all employees to verify eligibility for employment in the United States. When he asked the HR manager about the missing forms, Martin was told that the employment agency took care of them whenever they sourced candidates, and the forms were probably on file in their offices. About a week after the new employees were on board, Martin received an anonymous note in his inbox that read, “LGA Industries hires illegal immigrants.” He showed the note to the HR manager who told him that he should not believe everything he reads and that LGA had little choice but to get labor wherever it could.

Martin was quite upset when he went home that evening. He suspected his new employer was hiring undocumented immigrant workers. The next morning he called the employment agency and asked for a copy of the I-9 Forms of the five employees they had just hired at LGA Industries. He was told that the forms were not ready and were usually kept at the agency. Martin knew the Immigration Reform and Control Act (see Exhibit 1.21) required that if an employee does not have the proper documentation within three business days of his/her start date, the employer must terminate the employee. The next day his manager bluntly told him there was no need for him to worry or follow up with these new employees.

Exhibit

1.21.

Excerpts for I-9 Form Completion under the Requirements of the Immigration Reform and Control Act (IRCA)

Form I-9

The Immigration Reform and Control Act of 1986 (IRCA) made the knowing employment of unauthorized aliens illegal. Under IRCA, employers may hire only persons who may legally work in the U.S., i.e., citizens and nationals of the U.S. and aliens authorized to work in the U.S.

With the enactment of IRCA, the legal obligations of employers, hiring new employees have been greatly increased. Employers are required to verify the identity and eligibility for employment of all persons they hire after November 6, 1986. It is also unlawful for employers to knowingly hire a person who is not authorized to work in the U.S., or continue to employ such a person. Thus, IRCA requires employers to complete a Form I-9 for each new employee.

Employers may be held liable for an employee’s failure to complete Section 1. The employee has three business days from the date of her or his hiring to provide the employer with the documentation of identity and work authorization needed to complete Section 2 of the I-9 Form (“three business days” requires an employer to count weekends and holidays as business days if the employer is open for business on those days). The employee must present original documents (not photocopies) that establish identity and employment eligibility. If an employee does not have the proper documentation within three business days of his or her start date, the employer must terminate the employee. However, if, within that time, the employee produces a receipt showing that he or she has applied for a work authorization or identification document, the employee must be given 90 days to produce the required documentation. The employer must complete Section 2 of the I-9 Form within three business days of the date an employee is hired. Employees must not be required to produce specific documents. The employer must accept the documents enumerated in the Form I-9 “Lists of Acceptable Documents” in any of the combinations indicated on the form.

On the other hand, demanding excessive documentation can also result in substantial fines. IRCA’s anti-discrimination provisions prohibit employers of four or more employees from discriminating against certain protected individuals (including permanent residents, temporary residents, special agricultural workers, refugees, and asylees) with respect to hiring, discharging, recruiting, or referring for a fee.

I-9s must be retained for the duration of an employee’s employment, plus one year, or for a minimum of three years from the date of hire, whichever is longer. Employers must keep a record of employees whose work authorizations will expire and re-verify the authorization to work of such employees prior to expiration.

Employer Obligations for Document Retention

Employers must retain the I-9 Form for every employee for the full duration of that individual’s employment, with the exception of the individuals previously classified as exempt from the I-9 requirement. Additionally, every employer must keep each employee’s I-9 form on file for either three years after the date of hire or for one year after employment is terminated, whichever is greater. Employers should accurately organize and maintain all I-9 records. The Department of Homeland Security and/or the Department of Labor may ask to review I-9 documentation. I-9 documents must be provided to these federal agencies upon request.

Offenses

Failure to properly complete an I-9.

Knowingly hiring, continuing to employ, or contacting to obtain the services of an unauthorized alien.

Providing or knowingly accepting false social security cards.

Pattern and practice of I-9 compliance failure.

Monetary Sanctions

Paperwork violations may result in fines from $100 and $1,100 for every individual for which a mistake is made.

Substantive violations may result in fines from $200 to $11,000 per unauthorized employee depending on whether it is the first offense or a repeat offense.

In 1996, Executive Order 12989 was passed, which imposes a one-year ban on federal contractors who knowingly hire unauthorized non-immigrant workers.

Criminal penalties including fines and imprisonment may also be imposed if there appears to be a deliberate pattern or practice of violations of these requirements or where a company knowingly hires ten or more non-immigrant workers who are illegally in the USA.

Source: Lurie, D. (March 2005). “The I-9 Form: Everything HR Professionals Need to Know About the I-9 Employment Verification Process.” Society for Human Resource Management White Paper (www.shrm.org). www.dol.gov/compliance accessed February 6, 2010.

Questions

What factors appear to be affecting LGA Industries’ staffing practices?

Who is responsible for meeting the requirements of the Immigration and Reform and Control Act with respect to the completion of I-9 forms?

If you were Martin, what would you do now?

Exercise 17. Is This Unlawful Discrimination?

objectives

To help you understand the application of the six major federal laws that regulate equal rights in employment. These laws are Title VII of the Civil Rights Acts of 1964 as amended by the Equal Employment Opportunity Act of 1972, the Civil Rights Act of 1991, the Lilly Ledbetter Fair Pay Act of 2009, the Age Discrimination in Employment Act of 1967, the Vocational Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990.

To help you understand the court’s interpretation of these laws.

To help you understand the legal definition of discrimination and the burden of proof placed on defendants and plaintiffs.

out-of-class preparation time: 60 minutes

in-class time suggested: 45 minutes

procedures

Read the exercise and review the major laws before class.

The class should be divided into groups of four.

Each group should read each of the incidents that follow and answer these questions:

What legal statute(s) apply in this case?

What issue(s) must the court decide in this case?

If you were the judge, how would you rule? Did the employer discriminate unlawfully? Why or why not?

Elaine Mobley worked as a social worker with the Virginia Health Department’s child abuse program for two years. Mobley was a member of the nonsectarian Unitarian Universalist Church. During her first six months on the job, she divorced her husband of ten years. Her supervisor, a devout Baptist, encouraged her to discuss her marital problems with a Christian psychotherapist. On a number of occasions, the supervisor encouraged other employees in the department who were also Baptists to convert Mobley. Some employees held prayer meetings at her desk while others gave her the silent treatment. Their attempts to convert Mobley did not stop. At one point, the supervisor made her participate in a Christian puppet show. Another time she found a handwritten note on her desk from Jesus that read, “How can you speak of God and reject me? I love you and know all about you.” Her attendance at work declined because there were days she did not want to face the stress in her work environment. Mobley filed a complaint with the director of the division stating that she was being constantly bombarded with efforts to convert her to a Baptist. Shortly thereafter, Mobley was fired from her job. Mobley filed a lawsuit claiming that she had been fired because of religious discrimination.

Edward Roberts, a black truck driver, applied in person for a tractor trailer truck driver position at a trucking company on March 31, 2005, in response to a newspaper ad. Roberts’ application listed 22 months of prior experience as a road driver. He had an additional 10 years of experience which he did not list on the application due to a lack of space on the form. Roberts was neither interviewed nor contacted by the company about the status of his application. In June 2005, Roberts saw an identical advertisement for tractor trailer truck drivers. Upon inquiry, Roberts learned that eight persons (all white) had been hired as truck drivers between April and June 2005. All of those hired had less than 22 months of driving experience. The company contended that Roberts was not hired because no opening existed when he applied. Roberts filed a discrimination complaint in District Court.

Thelma Jones had worked at a large public accounting firm for five years when the partners proposed her as a candidate for partnership. Of the 662 partners in the firm, seven were women. Of the 88 persons proposed that year, Jones was the only woman. Forty-seven were admitted to partnership, 21 were rejected, and 20, including Jones, were held for “reconsideration.” Thirteen of the 32 partners who submitted comments on Jones’s performance supported her candidacy, three recommended holding her application, eight stated that they had insufficient knowledge to comment, and eight recommended denial. While the partners praised her outstanding performance, both supporters and opponents of her candidacy indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with, and impatient with staff. One partner described her as “macho.” In a meeting with a senior partner about her candidacy, she was told that, to improve her chances for partnership, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, style her hair, and wear jewelry.” When the partners refused to reconsider her candidacy the following year, she sued the firm, charging sex discrimination.

James McFadden was a transsexual who, while still biologically male, announced to his employer (East Coast Airlines) that he intended to dress and act as a woman in preparation for “surgical sex reassignment.” Mr. McFadden was subsequently fired from his pilot’s job for refusing to comply with its requirement that he continue to dress and act as a man. McFadden filed a lawsuit in District Court alleging that East Coast Airlines had conspired to discriminate against him on the basis of sex (now to be female) and that he was treated differently from other women employed by the airline.

Andrew Johnson, a black maintenance worker, was constantly referred to as “Chicken Little,” “Chicken George,” “Sparerib Kid,” “Boy,” and “Watermelon Man” by his white supervisor. These names were used not just during private conversations but in the presence of other workers. Despite several complaints to senior management, the name-calling persisted for several months. When management finally investigated Johnson’s claims, the supervisor admitted the comments but argued that he was only kidding. The supervisor was instructed to stop both the name-calling and kidding. A fellow employee warned Johnson that his days were probably numbered because he had gone over the head of his supervisor. Shortly thereafter, Johnson was injured on the job. While he was at home recuperating, his supervisor called to say that he accepted his resignation. Johnson denied resigning and wrote asking for his job back. His request was denied. Johnson filed a lawsuit alleging that he had been a victim of harassment because of his race.

Paul Martin had worked 12 years for the Department of Transportation when he applied for a promotion to dispatcher. Martin scored 75 on an interview test. Betty Palmer, another candidate, scored 73 and got the job. Martin sued the county for reverse discrimination. The county said that both Martin and Palmer were qualified and that Palmer had gotten the job as part of a voluntary affirmative action plan designed to achieve a work force that reflected the race and gender composition of the county. The county pointed out that none of 238 skilled craft worker jobs in the county were held by women.

Elnora Williams, a black female teacher with ten years of classroom experience and partial completion of her doctoral degree in education, applied for several vacant middle and secondary principalships in the Knox County school system. Each time she applied, she was told by the superintendent that “the school district believed that a ‘male image’ is necessary for a middle or secondary school principal.” No females had occupied a principal position in the school district. Williams subsequently filed a lawsuit in District Court accusing the school system of discrimination.

Frank Poole had been teaching hearing-impaired students in the Jackson County schools for six years when he was hospitalized with pneumocystis carinii pneumonia and, subsequently, was diagnosed as having AIDS. Despite the county medical director’s report that Poole’s condition did not place his students or others in the school at any risk, the Department of Education reassigned Poole to an administrative position and barred him from teaching in the classroom. Poole filed suit, alleging that the Department discriminated against him on the basis of his disability (AIDS).

Lauren Hill worked in the plant of Hillbrook Manufacturing Company from 1979 until 1998. During much of this time, salaried employees were given raises or denied raises based on their supervisor’s evaluation of their performance. In March 1998, six months before she was to take early retirement, Hill submitted a questionnaire to the EEOC alleging certain acts of sex discrimination, and in July she filed a formal EEOC charge. After taking early retirement in November 1998, Hill commenced a pay discrimination claim under Title VII of the Civil Rights Act and the Equal Pay Act. She alleged that at the time of retirement she was being paid significantly less than any of her male colleagues. Hill also said she had evidence that during the course of her employment with Hillbrook that several supervisors had given her poor evaluations because of her sex and that as a result of these evaluations her pay was not increased as much as it would have been if she had been evaluated fairly. Further, these pay decisions continued to affect her pay throughout her employment with Hillbrook. Therefore, she wanted to be compensated accordingly for the discrimination she had experienced during her employment with Hillbrook.

After working as a title clerk for Harrison and Sons Car Dealership for five years, Donna Skeen resigned. At 62 years of age, Donna had decided that she did not want to put up with the treatment she had received at the dealership. She had demanded an end to the teasing she experienced, but to no avail. In a suit she filed in District Court, Skeen alleged that the managers in the dealership referred to her as the “old lady with the sagging boobs.” When she forgot something or made an error on a title, she was asked if she had Alzheimer’s. If she complained about the temperature in the dealership, she was asked if she was suffering from hot flashes. The owner, Frank Harrison, said that there was lots of informal teasing in the dealership among employees and that Skeen often referred to herself as the “Grandma” of the staff.

Officials of a city government charged with discrimination signed a consent decree agreeing to an affirmative action plan with specific promotion and hiring goals for increasing the number of minority firefighters in the city’s fire department. Four years later, when faced with severe budget problems, the city implemented a layoff plan aimed at protecting minority employees who were recently hired. Jerome Atwood, a white firefighter, was laid off even though he had greater seniority than many of the minority firefighters who retained their jobs. Atwood filed a lawsuit charging reverse discrimination.

Herbert Fox worked as an office furniture salesman for 25 years with the same company. In his 25th year with the company, he went on leave for clinical depression. When it was time for him to return from leave, he told the company he could not return to work as scheduled. Subsequently, Fox and the company agreed upon a new date for return. However, Fox also requested that he be allowed to miss the first couple of morning sales meetings (a request prompted by the side effects of his antidepressant medicine) or to work on a part-time basis. His request was denied by the company, and they also told Fox that, because of increasing financial pressures, the company would be expecting 110 percent from him on his return to work. Fox did not report to work on the agreed-upon date and filed for disability benefits. The company subsequently terminated him. Fox filed a discrimination suit against the company alleging that the requirements attached to his return to work caused a relapse of his depression.

Lia Lee, a Laotian-American, worked for Federal and State Bank for over three years as teller. She had always received outstanding performance reviews from her supervisors. Consequently, when a position became available at the customer service desk that handled customer inquiries and problems, Lia applied for the position. She did not get the promotion. The bank argued that she was not promoted because she did not have sufficient English skills to calm irate customers. Lia Lee filed a lawsuit alleging that Federal and State Bank had overlooked her for a promotion because of her accent.

Margaret Reynolds, 5 feet 10 inches, 190 pounds, applied for a job as a fitness instructor teaching aerobics at Slendercise, Inc. She had always been very healthy and fit. She ate healthy foods, worked out five days a week, and could do all of the complicated aerobics steps and exercises. Slendercise, Inc. rejected Margaret’s application to teach aerobics because of her size. Reynolds did not look anything like the svelte women on the company’s Web site and promotional brochures. The company further argued that an aerobics instructor had to look leaner than the public and that people must believe Slendercise, Inc., will help them improve, not just maintain, their shape. Margaret filed a complaint with the Equal Employment Opportunity Commission alleging weight discrimination.

Abdul Mohammed, a Pakistani-American, was employed as a steelworker. As a devout Muslim, Mohammed was obligated to engage in daily prayer. Mohammed, along with five other Muslims working at the plant, asked management to provide a room where they could hold their daily prayers during lunch hour. The plant was located miles from the nearest mosque. Management told the employees that it did not have a room that could be used for such purposes. Consequently, Mohammed and his fellow Muslims were forced to recite their prayers in full view of other employees. Other employees ridiculed the Muslims during their daily prayers and called them derogatory names such as “camel jockey” and “raghead.” After being humiliated on several occasions by taunts from other employees, Mohammed and his fellow Muslims once again asked management to provide them with a private space in which to pray. Management again denied their request. Shortly thereafter, Mohammed filed a case with the Equal Employment Opportunity Commission alleging religious harassment and ethnic discrimination.

Exercise 19. Understanding the Americans with Disabilities Act

objectives

To help you understand the application of the Americans with Disabilities Act (ADA).

To help you understand the court’s interpretation of the ADA.

To help you understand the meaning of the terms “disability,” “qualified individual,” and “reasonable accommodation.”

out-of-class preparation time: 45 minutes

in-class time suggested: 45 minutes

procedures

Read the exercise and review the Americans with Disabilities Act’s definitions of “disability,” “qualified individual,” and “reasonable accommodation.”

The class should be divided into groups of four.

Each group should read each of the case incidents that follow and answer these questions:

What issue(s) must the court decide in this case?

If you were a member of the jury, how would you vote? Did the employer discriminate unlawfully? Why or why not?