The inauguration of President Donald J. Trump will significantly alter the focus of the administrative agencies overseeing employers. While we anticipate the federal agencies under the new administration to be more mindful of the difficult compliance burdens imposed on business, employers will likely face greater scrutiny of immigration and related hiring practices and greater penalties for hiring employees not legally authorized to work in the United States.

I-9 Compliance and Audits.

A new I-9 form has been issued and has been available for use since November 14, 2016. The new I-9 form must be used by all employers beginning on January 22, 2017. Employers should carefully review their hiring practices and record retention policies to ensure compliance with the relevant immigration and hiring laws. Violations for failure to comply with I-9 reporting requirements under existing law include maximum penalties for first time offenders of $2,156 for each non-compliant I-9 form and $4,313 for each unauthorized alien knowingly hired with substantially increased penalties for repeat offenders. While previous enforcement of these provisions has been sporadic and the penalties leveled against employers relatively modest, expect that to change.

Peters, Revnew, Kappenman & Anderson, P.A. provides low cost I-9 audits to employers and recommend that all employers audit their I-9s for compliance immediately. Investing in the I-9 audit in advance of a government investigation is money well spent.

If Homeland Security commences an investigation of your business before you have conducted your own audit, we can assist you with responding to their investigation and addressing any Notice of Suspect Documents issued by Homeland Security.

The Coming Age of E-Verify?

E-Verify is the government’s internet based system for comparing the data from the employee’s I-9 to the data retained by the Social Security Administration and the U.S. Department of Homeland Security to confirm employment eligibility. Many employers already voluntarily utilize E-Verify and many others already are required to use E-Verify under the E-Verify Federal Contractor Rule that has been in effect since September 8, 2009. Employers should anticipate legislative efforts to mandate the use of E-Verify for all employers. The best way for employers to prepare for that possibility is to make sure their current I-9 documentation practices are legally compliant.

The Supreme Court.

On March 29, 2016, following the death of Justice Anthony Scalia, the United States Supreme Court issued an equally divided opinion in the case of Friedrichs, et. al. v. California Teachers Association, et. al., which left in place requirements that all non-union member workers represented by the union pay “agency fees” to the union. It is widely presumed that President Trump’s nominee to the United States Supreme Court, once confirmed, would provide the deciding vote to strike down the current system of supporting public employee unions. A ruling on the issues presented in Friedrichs, while limited to the public sector, would likely have wide ramifications for the strength of unions in both the public and private sector and their influence over public policy.

The Department of Labor

The nominee for Secretary of the Department of Labor is the Chief Executive Officer of CKE Restaurants, Inc., which owns and operates Carl’s Jr. and Hardee’s. It is reasonable to anticipate a Department lead by an experienced businessman will set a new tone for the enforcement actions by the Department of Labor, which may lead to more reasonable enforcement actions and a better opportunity for reasonable resolutions through the existing mediation process. Employers should be mindful of two realities. The career employees within the Department of Labor will remain in place regardless of the change in Presidential administrations and their view of the world and their reluctance to recognize the struggles of businesses to comply with the myriad of regulations will not have evolved. The Minnesota Department of Labor and Industry is unaffected by the changes in Washington, D.C. and retains significant enforcement authority, albeit with much more modest resources than the federal Department of Labor.

If you have questions regarding this article or other labor and employment law matters, please contact Martin D. Kappenman or any other attorney at Peters, Revnew, Kappenman & Anderson, P.A.


Peters, Revnew, Kappenman & Anderson, P.A. is pleased to welcome Krysta Mitchell as an Associate Attorney to our team. Krysta has an extensive background in providing labor and employment advice in-house, with a particular emphasis on the health care industry. She is a graduate of the University of Wisconsin – La Crosse and Hamline University School of Law. She also has a Masters in Health & Human Services Administration from Saint Mary’s University of Minnesota, allowing her to particularly serve the health care industry’s legal needs. We are excited to have her join the firm, where she will continue to advise and counsel employers, and handle employment issues across the board. Krysta can be reached at or 952-921-4624.

We are also happy to welcome back Jon Olson to the firm as an Attorney Of Counsel. Jon spent almost a decade with the firm, and has since continued his strong traditional labor law practice while also addressing employment matters. Jon has extensive experience with labor negotiations, arbitrations, union avoidance, and responding to NLRB charges and union grievances. Additionally, he advises and counsels employers with respect to collective bargaining agreements, withdrawal liability, and other labor and employment matters. Jon can be reached at or 952-921-4623.


Wednesday, May 03, 2017

The Twelfth Annual Upper Midwest Labor Law Forum

DoubleTree By Hilton Hotel Bloomington, Minneapolis South

7800 Normandale Blvd, Bloomington, MN 55439

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