Where Immigration and Employment Laws Collide, A Global Perspective

Episode Notes

Transcript

Matt Greer:

Workplaces continue to be a focus of immigration policy changes and enforcement in the US. But did you know that similar dynamics are playing out in the UK? I’m host Matt Greer, and on this episode, which was recorded live at the ABA Labored Employment Law Conference in Denver, we are joined by experts, Monica Guizar from SEIU in the US and Marcia Longden from Kingsley, Napoli in the UK. On the US side, we discuss the impact of recent Trump administration workplace initiatives, including mass deportations, de- documentation, and blocking previous legal pathways for immigration, such as asylum. From a UK perspective, Marcia noted the political influences on immigration policies drawing interesting parallels with the US and the complexities of the UK’s skilled worker sponsorship system. Monica and Marcia also discussed proactive measures employers, workers, and unions can take in the current environment. I hope you find the conversation as interesting as I did, and stick around after the episode for my conversation with Kay Hodge, recipient of this year’s Arvid Anderson Public Sector Labor and Employment Law Attorney of the Year Award.

All right. Hi there. This is host Matt Greer. Here we are recording live at the ABA Labor and Employment Law Conference in Denver, Colorado. And I am really honored right now to be joined for a conversation on a very hot topic on immigration issues by two experts in this area. We have Monica Ghisar from SEIU based in Southern California, representing the employee union side of the perspective. And we also have Marcia Longden, who is coming from the employer side from Kingsley. Hopefully I get this right. Kingsley, Napoli in London. That was perfect. Is that close?

Marcia Longdon:

Okay. Yes, that was

Matt Greer:

Perfect. I didn’t try that out before we got on, so I hope you got that right. Representing the employer perspective, but also that an international perspective, which I think is really fascinating. I think everyone listening will find that interesting. So thank you both for joining us and also for your session that you just came from, just coming off hot off that plenary session at the conference. So welcome to the podcast.

Monica Guizar:

Thank you.

Matt Greer:

All right. Well, I thought we’d start off by talking about why we’re here talking about immigration issues. This is a hot topic. We had a plenary session, which is a pretty big deal at this conference, is that’s where everyone goes to one session, which is kind of a unique thing. It was chosen for that. And we’re also doing this podcast episode. So I though maybe I would turn it maybe to you, Monica, first to kind of explain why we’re here, what’s going on in the immigration world that makes this such an important topic to talk about.

Monica Guizar:

Well, I think what we’re seeing is just the dramatic policy changes by the Trump administration in immigration, and I think we could summarize them in three different categories or buckets. One is mass deportation and increased enforcement that’s resulting in raids. So today we talked about the Hyundai raid in Georgia where nearly 500 workers were arrested. Many were South Korean workers here on Bivisas. And so that was what set the stage for our presentation today. But one is the mass deportations. We’ve seen a lot of that in the press in terms of the tactics that ICE agents are using, in some cases, very violent tactics. In some cases, abusing and violating folks civil and constitutional rights. The second would be dedocumentation or illegalization of folks. So the Trump administration has in some cases removed work authorization for certain individuals, terminated certain programs for folks who were here lawfully working certain parole programs, certain designations for status like temporary protected status.

So that would be the second. So we have hundreds of thousands of workers losing jobs who were here had been legally vetted by the administration, by the federal government, and now they’re losing work. And then the third I think is sort of the administration’s blocking of legal pathways for people to be able to come to the country lawfully, like cutbacks on asylum, for example.

Matt Greer:

Great. Thanks, Madaka forget that heads up. I think those of us who in the US probably have noticed the news unless we’re literally living under a rock these days, but it’s really a great job of succinctly kind of laying that out. So Marcia, I guess from the UK perspective and the international perspective, what makes this an important topic for you to be here talking about?

Marcia Longdon:

Obviously the US is huge and there’s a lot of activity going on, but the similarity is the politics of it all, to be quite frank. So in the UK, we had the conservative government for 14 years and then labor got in. And what we’re seeing is that the labor government are trying to put their stamp on immigration and say, “Well, actually we’re going to try and reduce net migration as much as we can, but it’s truly led by the politics.” And that’s the similarity with the US. So when Monica’s talking about Trump and so on, those are the similarities. There is that negativity around it. The biggest difference I think in the UK is that it’s very much defined. So very similar to the H1B, but you’ve got a skilled worker. That skilled worker is attached to the company. And because the fines are quite huge, if it’s discovered that the skilled worker in some shape or form has made a mistake or the company haven’t reported properly, then you’re going to get fined.

And that’s the scary bit for a lot of companies. And they’re saying, “We want to do the right thing.” But at the same time, I’ve had clients or people come to me and they say, “Oh, Marcia, I don’t even know if we’ve got a sponsor license, but we’re sponsoring someone.” So they don’t even understand what they’re operating. And the UK visas and immigration have this line that they happily tell everybody. And basically what they say is it’s a privilege to have a sponsor license. It’s not a given. And they truly believe that. And so yeah, they’re doing everything in their power to review it, but also to concentrate on British workers getting jobs. And that’s just not the reality of a global economy. It really isn’t. Hopefully I’ve answered your question.

Matt Greer:

Yeah. No, that’s a great job. We’ll get into a little more of the details as we move along, I’m sure. But I appreciate that kind of perspective on the international viewpoint as well. So I know you’ve mentioned the high tech workers, the H1B, I think in the US. I think you use a different phrase, a sponsorship application. I’m probably getting that phrases wrong, but maybe we can start there. I mean, what are some of the changes on that, Fran? I think that’s been in the news quite a bit with the high skilled workers, I think probably is the correct phrase, hopefully. I don’t want to talk a little bit about what’s going on in that world and on that front.

Monica Guizar:

The H1B program is a way for highly skilled foreign workers to be able to come into the country and work here. They are petitioned by an employer, so they have to file a petition. They go through a process. They have to file a labor condition application where the employer indicates why this is a specialty occupation, why they meet the requirements as a high skilled worker, and they dictate the prevailing wage that that worker is going to be paid. And typically it’s supposed to be based on the prevailing wage in the locality. So that’s generally the process. Some of the changes that we’ve seen by the administration, the first that I think was mentioned in the panel, not by me, but one of our moderator was this $100,000 new fine for new HMB applications. And then the next program is this project firewall by the Department of Labor, where in the past, HMB workers are protected, they have whistleblower protections, they can come and bring complaints if the employer, for example, isn’t paying them the wage that was stated on a labor condition application, or they’re doing work that was not the highly skilled work that was petitioned for, for example, or any other type of abuse.

Workers can come forward and bring those sorts of claims. What this project firewall does is that DOL can come in on its own suasponte and investigate companies. And I think that’s causing some employers some concern about that. And then there is the potential for harm to workers, both US workers and H1B workers in the sense that this project firewall has a retroactive policy to it. And so if there is already someone here on a H1B visa and it turns out that there was something wrong in the application, that person could lose their job because they’re tied to that employer. And there are some reports that companies are saying that if HMBs are denied that they make those up shop and take work overseas. And so that could hurt work for US workers as well.

Matt Greer:

And counterintuitive, I guess in some ways it might end up with fewer jobs, it sounds like in some cases. Yeah.

Marcia Longdon:

I wanted to tie in with that in that obviously during the panel, we sort of touched on Brexit and the fact that the UK no longer is part of Europe and so on. And what happened after that was even though they want to attract skilled workers, what they said was, okay, a skilled worker is somebody who could be an undergraduate, could be an undergraduate. Earlier on this year, they’ve changed it. The role has got to be graduate level. So the only way you can come to the UK and do a sponsored to be sponsored, sorry, is highly skilled people. So it is degree level and above, right? So that was quite a significant change. And then in July of this year, the minimum salary for you to sponsor somebody is 45,000 pounds, right? Now that’s not even the national minimum wage in the UK, but if you want to sponsor a foreign national, you’ve got to pay them at least 45,000 or above depending on the job that they’re coming to do.

So the reflection on that is, again, technically protecting British workers, but not entirely because for certain jobs, you’re not paying the British worker the 45,000, but you’re going to pay

The foreign national. But these are the things that, not to be mean about the press, but these are the things that the press don’t talk about. And actively, those are the real differences and everyone’s trying to be very discreet about them. Obviously, it would protect the foreign national because that’s a good wage to be on. And if they have an audit, what the compliance officer wants to do as well is they will take the foreign national in a room and speak to them privately to make sure they’re getting that paid, to make sure they’re doing the job that they’ve been sponsored to do and so on. So those are the similarities when Monica was talking about the rights of workers.

Matt Greer:

Right. So the sponsorship is that how you’re referring to is, sounds like roughly equivalent to what the H1B is in the US. For those who are not as familiar with the terminology like me, this is obviously not my area, but yeah, I appreciate that perspective. I thought it was interesting. You both mentioned the cost associated with these workers. I know that there was that with the $100,000 fee that’s been talked about here and Marcia, I think you mentioned that there was some costs associated in the UK as well with this approach. I’m curious if that’s kind of impacting things at all or could impact things.

Marcia Longdon:

So in order to sponsor, let’s say you’re sponsoring a foreign national, one person to come to the UK for up to five years, you have to pay what’s called the immigration skills charge. That’s what I refer to during the panel, whereby that should be ring fence because it should be going towards upskilling British nationals, but we know it’s not ring fence. It goes into the treasury. Then you have to pay what’s called the immigration health surcharge, right? Now that immigration health surcharge goes into our national health system. So if you’re coming to the UK as a foreign national, your employer has to pay that, but you also have to have private healthcare because that money is going in to the national health service. So one person, really quickly, five years, you’re paying upfront costs of about 18,000 pounds, including the actual cost of the visa and so on.

So yeah, it is really expensive. And then in three weeks time, it’s going up again.

Matt Greer:

Oh, really?

Marcia Longdon:

Yeah. The immigration health surcharge is going to increase … No, sorry. The immigration skills is going up by 33%.

Matt Greer:

I’m curious if that plus the 100,000. Well, first of all, Monica, is the $100,000 fee, is that in place currently?

Monica Guizar:

Well, it is. Actually, it was introduced in September, and then there were lawsuits filed. There’s still litigation pending on that. And so in October, the administration clarified that that fee’s only going to apply prospectively and to new H1B applications for folks who are outside of the United States. So initially it was going to be a broader application, but since then they’ve kind of rolled back almost similar to what happened with raids on agricultural firms and then there was some apparent pushback and then Trump changed the policy and then retracted it again. But there is litigation depending on that.

Matt Greer:

It’s going to hold down. So we haven’t really seen the full impact of what that is, but theoretically it’s going to be an intent not to bring in those workers, I’m assuming, is the intent, right? Right. Yeah. Yeah. And is that having that impact to the sponsorship fee? Does that have a real impact on how many?

Marcia Longdon:

Companies budget. You budget, right? And typically your budgets are on an annual basis. So if the government, if the British government say, “Oh, actually we’re going to increase this in the next two months,” that’s not part of your budget, but if you’ve already got people coming in the pipeline, quite frankly, you’ve got no choice but to find the money from somewhere. And if you’re transferring, let’s say, I don’t know, 20 people, that is a huge amount of money because you’ve got to pay the cost upfront. You don’t pay it over a … You can’t sort of apportion it or anything like that. And those are the types of clients that we deal with, which are large companies. It impacts them financially. It really does.

Matt Greer:

I would imagine that sounds like a huge chunk there. So yeah, I guess, I don’t know, do you want to transition to talking about enforcement type pieces of what’s been going on on the enforcement side of things and any thoughts you have on that or suggestions or tips for folks who are dealing with those types of issues?

Monica Guizar:

I mean, I think what we’ve seen more have been these raids, these highly, as we see in the news media or social media and the press. What I would have expected to see more would have been more of the government inspection of company I- 9 forms, we’d call them I- 9 audits. I had expected to see more work side raids like we saw with the Georgia Hyundai plant, but there haven’t been, at least I haven’t seen as many of that traditional type of work site enforcement as opposed to what we’re seeing community raids or looking for specific individuals or just going to locations where they think they’re going to find folks and arrest them. So I think more of the mass deportation or this goal to reach the 3000 arrests a year that the administration put out seems to be more of enforcement and raid type of activity in communities and workplaces generally and not this targeted enforcement that we would expect.

Marcia Longdon:

Yeah, that makes sense in a way, doesn’t it? Because I also think that … So our raid situation is our immigration minister is actively saying on the news daily, “I’ve got enforcement officers out there, they’re coming to you, they’re going to find you no matter where you are. ” And that’s the point when I was saying that they’re going into hairdressers, they’re going into car washes, they’re going on construction sites, they’re going into restaurants, care homes, they’re going everywhere because it makes her look good to say, “We round up 200 people today or 300 people. ” And so naively, the British public’s going, “Oh, that’s great. That’s great.” But it’s incredibly disruptive, right? So your I- 9s would be our compliance visits to a company. Those are increasing as well because the idea is if they have compliance officers go into a company and if they can show that that company has not been immigration compliant, so they haven’t reported change in circumstances and things like that, they have the power to revoke the sponsor license.

So statistically, they can say, “We’ve revoked 47% of sponsor licenses in the last six or seven months.” So again, when they’re reporting that in the press, they believe that it’s appeasing the British public going, “Yay, yay. There is this absolute reduction and so on. ” And so they’re actively doing this. But here’s the thing, there are only certain industries that they will go to. So they won’t go to the financial industry who’s got sponsor licenses. They’re not going to go to the large tech companies that’s got sponsor licenses, so they’re going to go to the smaller companies because it’s easier. Whereas the larger companies, if there was something untoward, you don’t necessarily have an appeal right against it, but what you can do is you can do what’s called a judicial review, which is take action at the high court. But in order to do an action at the high court, it’s very expensive.

So the larger companies are going to would say that’s what they’ll do. In the past, what we’ve done is we’ve negotiated with the home office to say, “Look, our client will go for a JR against you. You don’t want this because it looks bad on them.” So then we say to them, reinstate their license and we’ll make sure

Matt Greer:

That

Marcia Longdon:

They do internal audits more.

Matt Greer:

So money talks, it sounds like. Yeah. What a surprise, right? Okay. It sounds like similar to the raise in the US. I mean, we’re having focused on certain Home Depot, parking lots, Walmarts. I think you mentioned a few-

Monica Guizar:

Car washes.

Matt Greer:

Yeah.

Monica Guizar:

I mean, they have gone … I mean, they are getting a little more brazen. They’ve gone to ride-share lots. In Chicago, they were at ride-share lots taking Uber Lyft drivers just out of their cars, really with no evidence of any reasonable suspicion that the individuals are unlawfully present in the United States. I think there was a recent report of them going into a child daycare center and arresting a teacher. So it looks like they’re looking for certain types of individuals in certain locations where they would expect to find a certain expected either race or ethnicity or national origin. Right.

Marcia Longdon:

They do it in the UK, sorry, but they go specifically to care homes. So a care home obviously has lots of elderly British people whose families are not looking after them, and it’s typically foreign nationals who are looking after them. So it’s a Filipino community, people coming from Ghana, Nigeria, because the British people will not do that job. But now, as of October, so October’s gone, you can’t hire a foreign national to be a care worker anymore. It’s crazy. You cannot. And so everyone’s sitting there going, “Well, how are they going to be able to facilitate the services that these care homes need?” Because any one of them that you get, them are not British people working there, it’s guaranteed, but because they kept thinking, “Oh, that industry’s being abused,” they’ve done a knee jerk reaction and just said, “As of October, you can no longer sponsor a care worker.” So we’re literally watching this space to say, “Well, what’s going to

Matt Greer:

Happen?” What’s going

Marcia Longdon:

To happen

Matt Greer:

Next? Yeah. Yeah. I mean, I think that’s similar here. I know that you, Monica, and SEIU, and I know SEIU has a lot of those healthcare workers as well, at least in some of the locals, right? So I’m guessing there’s some similarities in that industry in the US too. So yeah, it seems very like some levels of very superficial analysis about where they’re going, but maybe not. So also pretty obvious what’s going on in some ways. Well, I don’t know if it makes sense now to kind of turn … I don’t know. I was hoping we could find maybe a positive spin on some of this. I mean, a lot of stuff is going on and a lot of people are having really hard times with what’s going on, but I wonder if you have any thoughts about proactive measures that employers, unions, and employees and workers individually, what can you do in this environment to kind of protect yourself or at least be aware of what to be looking for in terms of what might be coming up in your future?

So I don’t know, Monica, do you have any thoughts on that to sort ofself?

Monica Guizar:

Yeah, sure. I think the number one thing is education, both for employers, workers, and just all of us individuals and understanding our rights with law enforcement. Federal agents, it’s not just ICE who are conducting these law enforcement actions. It’s DEA, FBI. We know in some cities there’s National Guard presence. And so I think it’s important for everyone to understand their rights with respect to law enforcement, what their rights are with respect to search and seizure and the right to remain silent. Important to educate workers to know who to call if they get detained and memorize a telephone number. If you’re a non-citizen who is required to carry certain documents, make sure that you have those on you, like a lawful permanent resident, for example, is required to carry their … We call it a green card. And then with employers, just unions have been meeting with employers to remind them about their rights with respect to law enforcement, to ensure that they have plans to respond in the event that law enforcement does come to their company property work site, ensuring that they have designated the areas that are not open to the public because without a warrant, law enforcement doesn’t have the right to enter those areas unless they’re giving consent and putting plans in place, educating their staff about what those plans are.

If a janitor or a security officer is approached, understanding who they are to contact if ICE is there, somebody else higher up in executive or management to deal with the ICE enforcement agent. So education meeting, and then the last thing would be bargaining language with the employer to ensure that the union has notice and is able to respond to assist workers, to assist families, and get representation for workers if needed.

Matt Greer:

I was curious about the collective bargaining aspect. Are most of the things that you’re seeing on that front, the notice and the opportunity to be aware and maybe have some presence there? Is that kind of what’s been bargained or are there other things

Monica Guizar:

That are out there? Yes. I mean, notice is the number one thing, notice to the union. This is all based on NLRA board law. There have been cases already, going back many years on these issues, but things like if there is an enforcement action and someone doesn’t have work authorization, but is in the process of obtaining it, getting time off to be able to do that. If there are folks who are impacted and are not able to return to work, negotiating a right to reinstatement at some period of time, if they are able to get their work authorization documents and order, leaves of absence, severance pay, those types of things.

Matt Greer:

I want to ask one more question of you before we turn it back over to Marcia for the employer perspective. So folks who are not represented by a union, workers, employees who are not in a unionized environment, do you have any thoughts for them if they’re in an environment that might be challenging for them? Is there anything that you think they could do to protect themselves?

Monica Guizar:

Well, I think many communities have immigrant rights organizations that have developed these immigrant rapid response and community response systems. And so they collaborate together to assist workers, all workers who maybe need assistance, who may need access to legal representation. And so I think it’s for even workers who are not yet union, understanding what their rights are with respect to law enforcement, same rules, having a number to call, consulting with an immigration lawyer. And I think when there is a large raid, unions along with immigrant rights groups and other worker rights organizations and the community have responded to assist those workers to be able to find them legal representation. So it’s not just unionized workers who have these protections. And then there are some state laws in certain states, California, Illinois and Washington have some of the strongest immigrant worker protection laws. And so in California, for example, if there is an immigration audit of inspection of I- 9 forms, employers are required to notify workers that there is an inspection happening and required to notify affected workers that they’ve been impacted and what their rights are.

And so understanding just their rights generally, California also just recently passed a NOY Rights Bill this year, I think in October it was signed by the governor. So employers have to give workers the rights, general worker rights, but also their rights in the event that there is law enforcement activity.

Matt Greer:

Great tips. Thanks for sharing that. So Marcia, from the employer perspective, as well as the international UK perspective, what are your thoughts?

Marcia Longdon:

So when new rules come out or the law changes, right? As a company, we do immediately within 24 hours, we let our clients know just by way of a mailshot and stuff like that. But then we also do an immigration forum for the clients to come and rightly or wrongly, but we have quite good relationships with the UK visas and immigration. So we say, come meet our clients and talk to them about what you’re proposing to do so that you can hear it literally from the horse’s mouth to say, “If you implement this, this is what the impact’s going to be. ” So we do that when it’s a significant change in the law. So when I spoke about the fact of having skilled workers at five years change to 10 years before you can get indefinite leave to remain, that will be a change in the law.

Now, in order for them to do that, they have to give at least 21 days notice for consultation. So we’re all literally watching when that’s going to come in and as soon as it does, we will get our clients, we will get our peers and everyone will respond to this to say why it’s wrong and so on. And literally people who are skilled workers or foreign nationals in the UK, they were very proactive with this potential change and they did things like petitions and stuff. I was so proud of them. They just did petitions and spoke to anyone who would listen. And then we encourage people to approach your minister of parliament, so your MP. So each area in the UK has their own identified MP and we’re saying to companies, approach them and tell them what this looks like in reality if this is what you’re going to do.

So we’re trying to do it from every single avenue. And then we also, like our head of our team, Nick Rollison, often speaks to the FT, the Financial Times to say, “This is what it’s going to look like if you let this happen.” So we do that in a sense of being proactive, but when it comes to the employers, like I think I said it before, but we go in and we do the audit, we do the audit and we say, “This is what you need to fix. This is what you need to change and get ready for it. ” I can go on the sponsor management system, which is the tool that provides for skilled workers, right? So I can go on as their representative. My clients know I’m not going to go onto that system unless we’ve done an audit of your system to make sure that you’re being immigration compliant because if their sponsor license was withdrawn, I can’t go on any other SMS.

So the impact is massive. And so using that type of tool, our clients are kind of quite compliant, but very quick story. A couple of months ago, I got a call about a charity that had a sponsor license and it discovered that one of their employees didn’t have the right to work. She had an asylum case going on. That appeal had been denied. She self-reported and said, “Look, I can’t work for you anymore.” Well, they said, “Okay, that’s fine.” But what happened was they continued to pay her because somebody in their internal team hadn’t updated the SMS to say that she could no longer work. I talk about that is because the government agencies are speaking to each other. So the tax people saw that she’d got this extra pay, then contacted the UK visas and immigration. UK visas and immigration withdrew their sponsor license.

But the really awful thing about that was this was a community led spiritual organization and it would have crushed them. So I said to them straight away, “Go to your MP, go and get your MP to fight on your behalf.” Long story short, they did that and it was reinstated because

Matt Greer:

Of that one

Marcia Longdon:

Thing.

Matt Greer:

Happy ending to the story. But it illustrates how there are real consequences to real people and real companies and men and charities. Yeah, definitely. Well, thanks for sharing all that. I think those are the main questions I have for you. I guess I wanted, as we’re kind of closing other conversation, just to give you an opportunity if there’s anything we didn’t cover. I mean, your plenary Session was chock full of lots of information that we obviously couldn’t get to in too much detail here, but I don’t know, is there anything else you want to share as we close out the conversation? Any closing thoughts or closing tips that you would throw out there for folks?

Monica Guizar:

I would just say for labor unions, any action by an employer that’s going to impact terms and conditions or something that wasn’t expected that is not in the collective bargaining agreement that it is an opportunity to bargain with the employer. And so for example, they’ve talked a lot, Marcia talked about these internal audits that they conduct. So for example, if an employer who has a collective bargaining agreement wanted to do its own internal I- 9 audit, for example, it would have to talk to the union about it and let them know What they’re going to do and what actions they’re going to take and what impacts it’s going to have on workers and they would negotiate over something like that. All right.

Marcia Longdon:

Okay. That’s interesting, isn’t it? Whereas in the UK, they don’t need to talk to anybody because the sponsor license is the employer’s sponsor license. So when they’re doing these internal audits, they’re doing it to protect themselves, but also really to protect the sponsored person. Because if the sponsored person’s been promoted, that’s fine as long as it’s natural progression. But if they’ve gone into a different job, that is a breach. It’s a breach, right? So their sponsor license could get revoked. So that is very simple and it actually is quite common. So doing the audits is something that I say it’s really, really, really important. Overall, the work permission process in the UK is relatively straightforward, quite frankly, because you can join all the dots. But where the issue arises is if you’re not paying attention and you don’t know about your workforce, you have no idea what’s going on.

And that’s when the problems can arise.

Matt Greer:

Sounds very easy to get into a bad situation with all those.

Monica Guizar:

Yeah. And I think the distinction here in the United States is everyone is required to complete an I- 9 form. It doesn’t matter what your status is. You just need to be able to show that you are who you say you are and that you have the authorization to work in the United States. And because of all of the policy changes, it’s caused a little bit of chaos and confusion with some employers. And so they’re looking at their I- 9s, they’re not sure if a status has terminated, or they may mistakenly think someone’s status has terminated and their work authorization is no longer valid when in fact it is. And so that’s why it’s important even when they’re doing their own I- 9 compliance that the unions are aware and that they bargain over the effects and how they’re dealing with it because there is room for error given all of the policy changes and confusion.

Matt Greer:

Yeah. Very good insights from both of you. I really appreciate it. So thanks again for spending some time on the podcast. I really appreciate it. Enjoyed your session, really enjoyed this conversation as well.

Monica Guizar:

No problem. Thank you. Thank you so much.

Matt Greer:

Every year, the ABA Labor and Employment Law Section bestows awards on worthy lawyers and organizations who are leading the way in the practice of labor and employment law. This year, I was fortunate to be able to sit down for a live conversation with three of the awardees right after they received their awards at the Section Conference in Denver. Here’s my conversation with Kay Hodge. All right. Hello, hello. This is your host, Matt Greer. I’m here recording live from the ABA Labor and Employment Law Conference in Denver, Colorado. Very excited to be doing some in- person podcast recordings here. And as part of that, we are interviewing and getting to know a little bit some of the award recipients that have received awards this year at the conference. And so right now, I am really honored, especially honored to be joined by Kay Hodge. Kay Hodge just received the Arvid Anderson Public Sector Labor and Employment Attorney of the Year Award.

So first of all, Kay, congratulations on receiving this award.

Kay Hodge:

Thank you, Matt. Thank you.

Matt Greer:

And I will just say this award has a special meaning to me. I am a co-chair of the state and local government bargaining and employment law committee, which is the committee that kind of oversees this award, I guess for lack of a better word. And Kay has been very involved in that as well. So we have some history in that committee, and I think we both hold that committee pretty close to our hearts in terms of the close-knitness and the collegiality we have. And so I just want to say this one has a special meaning to me and to you as well, I’m sure. But Kate, I guess I want to turn it over to you. Tell us, what does this award mean to you and to receiving it?

Kay Hodge:

You know what? The award means a lot to me because although I’ve gotten some other awards, the fact of the matter is this is about the things I do for a living. And I do that every single day and I have been doing it for many, many years. And so to receive an award, first of all, my nominators were included, a union employee representative as well as an arbitrator. It means a lot that they have included me in a group that they think is worthy of some merit. But in addition, I think that it’s meaningful because the work of public sector lawyers often is overlooked and it’s overlooked because of the fact that we don’t tend to get paid as much per hour as our colleagues doing, or I certainly don’t get the same rate that I do in my private sectector work. However, it is very, very rewarding.

And it’s rewarding because you get to engage in a review of issues from a perspective that is fairly high level. It’s the constitutional questions apply to the public sector and don’t apply to the private sector. And so it really gives an added degree of oomph to all of the questions that you look at. And those questions require an evaluation of some of the most important cases that have ever come down from the Supreme Court and the application to specific circumstances that I’m very familiar with. And so it’s wonderful. It’s just a really great opportunity.

Matt Greer:

I had the honor of listening to you as you accepted the award. I know you mentioned a couple of the recent cases. Do you want to summarize one of the recent cases that was interesting to you in your public sector practice? Well,

Kay Hodge:

There were just a lot of cases that I’ve been involved in, but one of the cases actually, I mean, every case teaches you something new. I got involved in the, actually at the Supreme Court of the United States in a Title IX case that our firm had handled through the entire district court to the First Circuit Court of Appeals. And we’d been successful and we’d been successful on arguing under Title IX of the educational amendments a particular perspective, but it turns out that we were a part of a circuit split. And so interesting, it was a harassment case involving two students, both of whom were in the first grade. It was not the kind of issue that one would’ve expected. I thought that the employer in this case had done everything they were supposed to do. They had immediately investigated. They had done a thorough investigation.

In fact, the police had done a secondary investigation and determined that no charges were appropriate for the first grade boy who was alleged to have harassed the girl. And on the bus, all of the harassment occurred on the school bus, by the way. Nevertheless, the parents were bringing the case under Title IX. And so I thought that the case was very weak, but it turns out that when I got the Supreme Court and made the argument, I learned very quickly that it doesn’t matter what the facts are, although facts matter to every other level of a lawyer’s existence, the facts became less important. The Supreme Court was faced with a circuit split in that they got to pick a side and they picked the side that was not mine. Okay. So there you go. Another recent case was in the school context was a case involving equal protection and the exam schools.

Boston has three, which are known to be exam schools. They’re highly sought after admission, and it was what admission procedures ought to be applicable. And we were successful in defending the use of zip codes in place of what used to be a state citywide exam and grade point average for selection to the exam school because of COVID. We needed a one-time plan. We couldn’t bring the kids together to take the exam. And the argument was is we selected zip codes in order to harm because of the racial demographics and the school committee wanted to change the racial demographics. The First Circuit found that the twin requirements of animus and the requirement of disparate impact were not both met. Unfortunately, that case, we were successful both at the district court, at the First Circuit and Sectiono was denied. However, in a subsequent criteria that was adopted by the school committee after the zip codes, which was a one-year plan for the COVID pandemic, they went to census tiers and bonus points for socioeconomic circumstances.

Part of the issue is, is that obviously what happens whenever you’ve got something like an exam, an elite selection procedure in a lot of parts of the city of Boston, which is a minority, majority city, students of color don’t apply. They don’t even know. The families don’t even know. What difference does it make? If you get a high school diploma, you get a high school diploma. Isn’t that sort of it? So the fact of the matter is, is it is in the affluent whiter areas which apply at a much higher rate. And so what happened with the new socioeconomic census track based system, it ensured that students from all of the census track areas, socioeconomic areas in eight different tiers could apply for and get admission to the exam schools. And a minimum threshold of a B average was chosen because that was determined to be the persistence level or the level at which a student could make it in the exam schools and flourish getting an exam school education.

So the opportunity was expanded to include a whole lot of other students. And recently, now four years into that, we’ve gotten another lawsuit challenging those census tiers based on socioeconomics. And the argument is that that’s really a violation of equal protection because it was really race-based and strict scrutiny should apply and they should be thrown out. It is also concomitantly at the same time, an example of, well, merit ought to be the only basis. A student with a higher exam score and grade point average ought to be the one who gets in. And yes, they were predominant. They would’ve meant that predominantly the entrance or the folks who were successful would be white from the more affluent areas. However, again, a person with a B average can benefit at same level or more so than a student from a more affluent area. And I believe that in many respects, things like what is the application rate is a reflection of a lot of societal issues that are related to, maybe related to socioeconomic status.

It is that you’re affluent, you know the benefit of sending your kid to Boston Latin School, which is one of the feeders to Harvard.

Matt Greer:

Right. I think that case is a really interesting illustration about what I think of as a very important part of your practice and certainly your reputation as somebody who is working tirelessly to create equity across socioeconomic, racial groups. I know that that is something that you are respected for and known for. I guess I’m curious if you have any thoughts on that part of your work. I mean, obviously that case is one example of that, but any other thoughts on that?

Kay Hodge:

From the time that I got involved in bar Association work, I realized that our profession was predominantly white and male. The fact of the matter is it needed to become more diverse. We were the whitest of all professions and we were also the most male dominated. And so it has been one of my honors to be involved in committees of the American Bar Association or in committees of my state bar and then American Bar Association to try to change that, to offer opportunities for individuals who are not white or women or others with other disabilities or related issues of protected status to participate and to seek to bring their talent and to join the profession. I also got the opportunity to ensure that some of those programs became lasting parts of the ABA for many years. And most recently, however, they’ve come under attack under the “anti DEI” movement of the current administration.

I don’t happen to think that they were discriminatory. They were just attempting to change the world. Now women are making up much more of our profession and admission to law school. Now, however, we’re beginning to see the impact and a lot of this is resulting in some regression away from being as open and encouraging to young people of color. The truth of the matter is unless you have these programs at target and try to educate about the benefits of choosing law as a profession, young people are going to see other professions more readily and they’re going to want to do something and that’s why very often they will go in areas where they see the most opportunity, they see others who look like them succeeding.

Matt Greer:

Well, I appreciate you doing that. I can speak firsthand from some of my fellow committee folks, how supportive you are in terms of mentoring folks. And I will say that it includes me as a white man. You’ve been very supportive of me as well in addition to the special efforts that you

Kay Hodge:

Know. It’s because you deserve it because people who are willing to give their time and effort for the profession to help encourage others and to bring the best, deserve to be recognized. And really that’s why professional associations, I think, have such great value. They give a place.

Matt Greer:

Yeah. Well, thank you so much. I know during your little acceptance speech, you did tie it back into Arvy Andersen who the award was named after. I don’t know, do you want to close by telling us a little bit about who he was? And then I know you had a quote that I thought was very interesting if you wanted to share that.

Kay Hodge:

I would be delighted to do that. Arvin Anderson, I didn’t know anything about him. And I had actually served as one of the co-chairs of the government public sectector bargaining committee and had selected previous Arvind Anderson award winners, but we had applied the criteria, but I didn’t know about Arbit Anderson himself. And so I did some Googling and I discerned that he had been at the Wisconsin Employment Relations Commission. He had been the New York City Office of Collective Bargaining. He had been involved in being an innovator of ways to resolve collective bargaining disputes in a manner that was not violent or that was not initiated by a strike. And among them was interest arbitration for wage resolutions in the public sector. But one of the things that I thought was really important was how collegial he was and how everyone talked about the professionalism and the respect that they had for his ability to, if you will, not lash out and to try to bring people together and to work together.

And so in looking at learning more about him, I came upon a interview of him in the National Academy of Arbitrators book and the quote I think is very apropos to today, and I would like to read it if I can. Arbit Anderson said in that quotation, “I hope that our political leaders at all levels of government will recognize the importance of saying good things about the value of public service rather than contributing to the decline of public employee morale by demeaning the role of government and trampling on the dignity of public service.” That’s somehow people who serve the public, whether by teaching school or fighting fires or providing police protection or collecting garbage or healing the sick, or yes, even collecting taxes are somehow less worthy or less efficient than those who work in the private sector in offices, factories, businesses, and professions is a myth that needs to be dispelled.

It has been a privilege and a pleasure to be part of an orderly dispute settlement process for many years. At times, it has been stressful, but never boring. Those were Arvard Anderson’s words. I second them and I would urge everyone to consider his remarks.

Matt Greer:

Yeah. Very timely even today. Well, thank you, Kay. I really appreciate you spending some time talking with us and sharing those perspectives. And again, congratulations on this well-deserved honor. It’s truly wonderful that you received that.

Kay Hodge:

Thank you, Matt.

Continue Reading