ICE, DEI and non-compete clauses among the legal issues employers are facing

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There are many legal issues facing employers right now that understandably have raised concerns but speaking during and Employment & Immigration webinar hosted by Lehigh Valley Business, local attorneys are assuring them that compliance is much easier than they might think. 

Raymond Lahoud, of Lahoud Law, a corporate immigration law firm serving the Lehigh Valley, said many employers are concerned over ICE raids coming to their door. 

But he said the reality is that most employers will be experiencing ICE investigations versus raids, which should be much less intimidating. 

“We are starting to see a lot of enforcement efforts focusing on people with criminal records,” Lahoud said. “This will not impact most employers.” 

He said the main concern for employers is that they may have immigrant employees that don’t have the proper documentation that management is unaware of. 

“What we’ve been told is that there’s going to be a huge increase in I-9 audits and we’re starting to see that,” Lahoud said. 

The I-9 is the form used to verify the identity and employment authorization of individuals hired for employment in the United States. 

He said industries that have a larger immigrant work force such as manufacturing, farming and hospitality should be proactive in making sure all employee documents are in order. 

Jacob Sitman, chairman of labor law at Fitzpatrick Lentz and Bubba in Allentown, said that since they may have ICE asking to see documents they should be prepared. 

“In order to make these investigations simpler, have the I-9s separated and available,” Sitman said. 

He said by keeping the forms separate from other employee records in a separate file, they can easily be reviewed without having to sift through other employee paperwork that might not be relevant to what ICE is looking for. 

Most importantly he said don’t ignore the problem. 

“Audit your own records,” Sitman said. He said many issues are simple and easily remedied like documentation that may have expired or a name that may be mistaken for another person with the same or similar name. 

David Steckel, a labor attorney at FLB, said another major legal concern that has been getting a great deal of attention lately is the issue of non-compete clauses. 

Last year there were legal challenges to the enforcement of non-compete agreements that were heard in a number of different courts. 

Ultimately, non-compete clauses are currently enforceable in most of the U.S. including Pennsylvania. 

“They’re still being enforced here,” Steckel said. “But they need to be reasonable both in time and geographic scope in a way that won’t prevent them from earning a living.” 

He said if an employer wants to have a non-compete agreement with an employee, they need to be cautious about the wording. If the contract is too broad or overreaching, the entire thing might be thrown out by the court. 

He suggested that if an employer has legitimate business interests that they need to protect, they should investigate whether or not another type of contract might be better suited to the situation. 

For example, a confidentiality or non-disclosure agreement could protect proprietary information, and a non-solicitation agreement could help prevent an exiting employee from poaching clients or other employees. 

Sitman said for employers that do feel they need a non-compete agreement, make sure it is properly drafted by someone who understand contract law, rather than taking something off the internet or borrowing another company’s language, which may be inappropriate for the situation at hand. 

The letters DEI have also been making the rounds among corporate concerns. 

Standing for Diversity, Equity and Inclusion, the practice has come under scrutiny and caused a great deal of confusion. 

President Donald Trump signed an executive order Jan. 21, which banned “illegal DEI.” 

Sittman said the problem was that most people didn’t understand what he meant by that. 

“Is it enforceable and how could it be enforced?” he asked. 

Once concern is that while there are federal protections against discrimination, there are also state and local anti-discrimination protections that may go beyond federal law, such as protecting discrimination against someone for gender identity. 

While anti-discrimination polices, while varied, are generally fine, the problem comes in if a company actually has policies that include quotas or percentages of employees of a certain minority race, religion or gender. 

Sitman said that itself is a form of discrimination and is illegal. 

Also, while minority employee groups are fine, making them exclusive to those in that group, rather than opening them up to any interested employee would be illegal discrimination. 

“There is going to be increased federal scrutiny,” Sitman said. 

But again, he said it’s easily handled. Most often companies have found that simple word changes erase any concerns about DEI policies. 

“It’s an issue of phraseology,” he said. Revise the way policies read to eliminate terms or titles like DEI officer to something more like, Equal Opportunity Officer, to make the role’s intent clearer. 

To be sure, some companies are pushing back against the federal anti-DEI stance. 

Costco, for example, refused to comply with federal anti-DEI orders. 

The company’s reasoning was that its DEI policies were good for business and needed. 

Sitman said other businesses, like Boeing, have taken notice and have adopted similar stances, so the battle over DEI is likely far from over.