How will employers have to respond to Trump’s Muslim ban?

You may have heard by now that Donald Trump signed an executive order on Jan. 27. The order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” suspended the issuing of immigration visas and other immigration benefits to citizens of several Middle Eastern countries.

Summary of the executive order

According to the New York Times, the executive order “indefinitely barred Syrian refugees from entering the United States, suspended all refugee admissions for 120 days and blocked citizens of seven Muslim-majority countries, refugees or otherwise, from entering the United States for 90 days: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. … After the order was signed, students, visitors, and green-card holding legal permanent United States residents from the seven countries — and refugees from around the world — were stopped at airports in the United States and abroad, including Cairo, Dubai, and Istanbul. Some were blocked from entering the United States and were sent back overseas.”

The executive order led to a crazed weekend, with confusion among government agencies about the scope of the order, detention or denial of entry into the United States for individuals with approved visas and green cards, nationwide protests for the second time in just under a week for the new administration, and emergency legal actions to limit the immediate harm. It also led to a retaliatory ban on American citizens entering Iran.

With the start of a new workweek, how do companies and human resources staffs need to respond to the impact of this executive order?

Before I get to the legal and HR issues, I need to take a moment to comment on this ban. Many commentators have said much already. I usually would not criticize political actions in such an article and would focus instead on the impacted legal and business issues. I realize this additional commentary may be off-putting to readers and even potentially harmful for future prospects. I understand if that is your reaction and accept any subsequent consequences. However, this executive action offends core constitutional principles and values that I respect as an immigrant and as an attorney. Therefore, I cannot simply gloss over its obnoxious aspects.

Why the executive order is immoral and unconstitutional

The executive order imposed a travel ban on people who had been approved for visas and for green card holders. People in these categories had done nothing wrong, had not even been suspected of committing a violation, and yet had their legally earned status revoked. Graduate students, workers, and families all had their lives uprooted without a hearing or an opportunity to challenge the basis of the decision. Such effects practically scream that the order was unjust and would very likely violate the due process clause of the U.S. Constitution. And yet this administration rushed ahead with its plans, without seeking proper legal or operational guidance about the order’s effects.

During the election, candidate Trump called for a ban of all Muslims traveling to the United States. Coincidentally, the order targets seven Muslim-majority countries. Right on the heels of issuing the order, Trump stated that he wants to give preference to Christian refugees. Trump’s statements and actions demonstrate a clear bias against a religion and its practitioners. Is that illegal in the immigration context? I am not sure. However, our civil rights laws forbid religious discrimination. Our Constitution states there shall be no religious test for public office. And yet, we are going to make immigration decisions based on a person’s religion and hold that religion against them?

The most disheartening part of this executive order is its effect on refugees, especially refugees from war-torn Syria. The order suspends any refugee admissions for four months, pending a review of the security screening process. It also cuts down the quota for refugee admissions for fiscal year 2017 from 110,000 to just 50,000 and prevents admission of Syrian refugees until a time that Trump determines their entry is consistent with the national interest. This means Syrian refugees may be admitted again starting around June 2017 or they may have to wait much longer.

What was the driving force behind this decision? Has there been an outbreak of terrorist acts by refugees? According to CNN, there have been zero terrorist attacks by refugees from 1980 until September 2016. In September 2016 there was one incident at Ohio State University by one Somali refugee. However, many other incidents that could be characterized as terrorist acts were not by refugees. One incident in 36 years is somehow sufficient for this administration to impose a total ban on refugees for four months and to reduce the overall quota by about 60,000. In reality, there are only about 20,000 spots left, because almost 30,000 have been used up since fiscal year 2017 began in October 2016.

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How can employers respond to the executive order?

Employers need to consider at least the following issues. The discussion below is strictly informational; it is not meant to be legal advice or to create an attorney-client relationship. It will be updated if I get more information.

1. International travel for foreign employees: Green card holders or non-citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen should not travel outside of the United States until you confirm with legal counsel whether they will be able to return.

2. For foreign employees in transit: It appears green card holders and visa holders should be able to return due to court orders from this weekend. However, all individuals from the seven banned countries may be stopped, questioned, or detained. If possible, consider sending them information on their rights, such as asking for an attorney, not signing any forms without consulting an attorney, and what to do if asked for personal information or access to email or social media accounts. There are volunteer attorneys at the major airports that may be able to assist them.

3. International travel for U.S. citizens: Iran has barred United States citizens in response to the executive order. Therefore, you may need to cancel or reschedule business trips to Iran.

4. Recruiting: Hiring employees from the seven banned countries may not be possible for the next three to four months. Check on alternate arrangements, such as hiring individuals in their home countries and providing remote access, if necessary. The ban may prevent your company from obtaining employment visas, such as an H-1B, for individuals from the seven banned countries.

5. Absences: Employees who were traveling or on vacation to their home country may be delayed for extended periods. Consider placing them on a leave of absence or allowing remote access until they can return. Evaluate whether employees can remain on the company’s health insurance during the absence, to minimize the hardship to the employee or dependents.

6. Temporary hires: You may need to look at hiring temporary employees to cover gaps in coverage for any employee who cannot return to the United States.

7. Terminations: You may have to consider involuntary terminations if employees cannot secure a return to the United States. You may also find employees who need to resign and return to their home countries in order to be with parents or spouses who are not able to return to the United States.

8. Political activity: This ban may affect your employees on a personal level. You may also find others who have strong opinions one way or another. Be sure to communicate your guidelines on political discussions or activities between staff. Other issues include a review or development of policies to govern what happens if employees want to attend political protests during non-working hours.

9. Anti-harassment and discrimination: The ban targets Muslims. However, your company still needs to comply with non-discrimination and anti-harassment laws, such as Title VII of the Civil Rights Act of 1964.

10. Social media use: People are sharing and finding information about the ban through social media. Review any existing social media policy usage with your employees, including emphasizing any guidelines on whether employees should or should not communicate their affiliation to the organization.

Nilesh Patel is the principal attorney of the Mahadev Law Group, which focuses on helping businesses with human resources and employment law concerns.

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