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What Trump’s Immigration Executive Order Means for Employers
Posted 01.31.17
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Jonathan A. Segal
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I am pleased to share my  latest article posted to Philadelphia Business Journal.

Last Friday, President Trump issued an executive order that:

  1. Suspends entry of all refugees to the United States for 120 days;
  2. Bars Syrian refugees indefinitely; and
  3. Blocks entry into the United States for 90 days for citizens of seven predominantly Muslim countries. The countries are: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

 

Four federal judges have blocked implementation of at least parts of the executive order.

Even so, it appears the Trump Administration will continue to back the order, causing questions to arise for employers and what it means for their employees who have green cards or other foreign nationals who are lawfully working for them.

Does the executive order cover individuals with green cards or other foreign nationals with the right to work in the United States?

The answer to this question is unclear. Members of the new administration have said it does not apply to those who hold green cards. But these statements are not law. Plus, even if the executive order does not apply to those with green cards, what about those who hold other visas to work in the United States? Until there is greater certainty, employers should assume the executive order may apply to all employees who are citizens of those seven-designated countries.

Should employers make clear that foreign nationals from the 7-designated countries do not have to travel?

Yes – employers should not require employees who are citizens from those seven affected countries to engage in business travel for them outside of the United States. Why not? We don’t know if they will be able to get back in! Such employees should be assured the absence of such travel will not have adverse impact on their employment status.

What if an employee who is a citizen of one of the seven impacted countries wants to engage in international business travel notwithstanding the executive order?

In these cases, employers may be tempted to say no to protect their employees from the unknown. But the courts have generally rejected “paternalism” as a defense to discrimination and this could be deemed discrimination based on national origin.

In these cases, employers should explain the personal risks the employee is voluntarily undertaking and ask him or her to acknowledge same in writing.

Can employers prohibit personal travel to their homelands by foreign nationals from the 7-designated countries?

This probably is overreaching and could be discriminatory. Is relying on an executive order the scope of which is unclear a valid defense to a national origin discrimination claim? I don’t know the answer and would not want any client to be the test case.

However, employers can and should communicate the risks of personal travel for some. At the same time, we don’t want employees from these countries to feel targeted. The reality is that many already do. So make sure the communication goes to all employees; also, employees not directly affected by the executive order care about their colleagues, too.

What will happen next?

I have no idea. I do know the situation if fluid, and that employers need to communicate with their employees. The level of fear and anxiety that can be found on social media does not remain there. It is in your workplaces, too

This is not legal advice pertaining to specific factual situations.

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About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .