Two notable cases decided in 2007 have left employers reevaluating their policies regarding employee fraternizing and federal immigration law. More specifically, employers are now having to determine whether their employee handbook fraternizing policies violate the National Labor Relations Act ("NLRA") and whether terminating an undocumented immigrant employee violates the Federal Immigration Reform and Control Act ("IRCA").

Fraternizing Policies:

Non-fraternizing policies have been added to employee handbooks to reduce sexual harassment in the workplace and to avoid conflicts of interest with customers. Some of the broader policies bar employees from having outside friendships with co-workers and clients. A recent federal appeals court decision, however, held that a broad non-fraternizing policy may violate federal labor relations law. This is because the NLRA guarantees employees, whether union or not, the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection". Therefore, if the rule would tend to chill employees in the exercise of their NLRA rights, the policy would be in violation. Although this particular case relates only to the NLRA, it is likely court in future cases may apply the same reasoning to other employee rights statutes.

What you can do:

Narrowly draft your fraternization policy: Use clear language so that employees understand the policy does not reach protected activity. Define fraternization to include romantic relationships only, or expressly exempt protected activity from the reach of the policy.

Federal Immigration Law:

The Plaintiff in Incalza v. Fendi North America was an Italian native and citizen. He worked for Fendi in Beverly Hills for 12 years and was assured he would have a job at Fendi if he continued to perform well. Because of a change in ownership, his current E-1 visa was no longer valid, so he needed an H-B visa. Although Incalza requested to be out on unpaid leave until he was able to obtain his new visa, he was instead terminated. Incalza sued for wrongful termination. Fendi argued they had to fire Incalza in order to comply with the Immigration Reform and Control Act of 1986 the (the "IRCA"), which required it to terminate Incalza for not having a valid visa. The jury awarded Incalza $1,088,440 for wrongful termination. The Ninth Circuit upheld the decision because Fendi was not required to terminate Incalza. The IRCA permits employers to place employees on unpaid suspension or leave while a documentation problem is being fixed.

What you can do:

Review Federal and California law regarding immigrant employees: The IRCA forbids employers from knowingly employing unauthorized aliens. If it appears a current employee may be able to resolve his documentation issue in a short time, place the employee on unpaid leave as opposed to terminating the employee. In addition, remember that California law protects workers, including illegal immigrants, from termination in violation of an express or implied agreement that they will not be fired except for good cause.

If you do not have an employee handbook, you should hire an attorney to draft one. If you already have a manual, but it is a few years old, you should hire an attorney to review and update it.

ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952), or by e-mail (geskridge@eskridgelaw.net.) Please visit our website at www.eskridgelaw.net or www.employmentattorneys.net.

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