Hot Tip: What Your Clients Should Know About Enforcing Immigration Laws in the Workplace: How to Walk the Line Between Employer Sanctions and Anti-Discrimination Law

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At our Annual Meeting Program on January 23, 2007, several speakers presented "hot tips." David Meyers of Albany told us how you should advise your employer clients on the pitfalls of enforcing immigration laws in the workplace, and some have asked for the outline he used at the end of his presentation. This is it:

When I did this “tip” three or four years ago, I told the story of an immigration practitioner who failed to follow the provisions of IRCA (Immigration and Control Act of 1986) with respect to his own employees, that he was subsequently raided by the then-INS, and that he was fined substantially for paperwork violations.

Very generally, IRCA does three things:

1. It prohibits employers from knowingly hiring a noncitizen who is not authorized to work for them.

2. An employer must verify the identity and work eligibility of all employees, even if they are U.S. citizens, on an I-9 form, and refuse them employment if they fail to comply with the verification requirements.

3. IRCA's anti-discrimination provisions prohibit an employer from intentionally discriminating in hiring or firing on the basis of an individual's national origin or citizenship status.
In an irony similar to that of the immigration practitioner, on December 12, 2006, Immigration and Customs Enforcement (popularly known as “ICE”) raided six meat processing plants owned by Swift & Co. and arrested over 1,200 undocumented workers. The twist here is that Swift & Co. was participating in ICE’s “Basic Pilot” program, which is a voluntary program where the company only hires workers whose employment documents have been cleared by ICE.
The additional irony, however, is that Swift has been cooperating with the government all along. ICE raided Swift, but is not seeking criminal or civil penalties against the company. In fact, Swift was fined $200,000 by the Justice Department not for employing illegal workers; rather, Swift apparently crossed the legal line and discriminated against a potential worker because of his ethnicity.

Proposed DHS / SSA “No Match Rule”

Supporting the continuing shift to make all employers more responsible for complying with immigration laws, the DHS published proposed regulations addressing what employers should do if they receive a notice from the Social Security Administration (SSA) indicating that an employee's name or Social Security number doesn't jibe with SSA records.

Each year the SSA sends these notices, known as “no-match” letters, to thousands of U.S. employers. Until recently, employers faced few problems if they failed to react to no-match letters. Under the proposed rule, however, no-match letters could create “constructive knowledge” that an employee is not authorized to work in the United States. Such a finding would expose employers to penalties.

The proposed rule would add two (2) examples of constructive knowledge situations to the existing regulations:

1. where the employer receives written notice from the SSA that the combination of name and SSN submitted for an employee does not match SSA records; or

2. where the employer receives written notice from the DHS that documentation presented by an employee in completing an I-9 form is invalid.

The proposed rule also specifies the steps an employer would have to take to constitute making a reasonable response to a no-match letter. These are “safe harbor” procedures are not going to be easy to follow.

They include:

1. a requirement that employers take specific steps to resolve any discrepancies within fourteen days of receipt of the letter;

2. complete a new I-9 form within sixty days of receipt if they fail to resolve the discrepancies; and

3. verify the new information within sixty-three days of receipt.

Otherwise, employers would risk a finding of constructive knowledge that an employee is not authorized to work.

Fines v. Anti-Discrimination

So, what have we got. Employers must be careful in complying with the employer sanctions provisions. On the one hand, they face government fines or even criminal prosecution if any of their employees are not authorized to work. (Fines for violating the employer sanctions provisions range from $100 for first-time paperwork violations to criminal sanctions (including up to six months in jail) for repeat offenders.) On the other hand, they face possible lawsuits if they ask employees for too much information.

Tips for an Employer Sanctions Compliance Program

Here are some tips that you can provide for your commercial or corporate clients, in an area of law that you can easily become informed on, that will allow your clients to toe the line between employer sanctions and anti-discrimination law:

1. Be pro-active. Have your client set up internal protocols for how your client’s company will handle I-9 forms, including ongoing training. Recommend that your clients regularly audits their I-9 forms (or ask them to have you do it).

2. Tell your clients not request specific documents to verify employment eligibility. Instead, let new hires choose from the list of acceptable documents attached to the I-9 form.

3. Have your client complete section one of the I-9 form on the first day an employee begins work. Have them do this for all new employees, even if they are convinced they are U.S. citizens.

4. The remainder of the I-9 form must be completed within three business days. If workers fail to bring the documentation required by the I-9 (or a receipt for replacement documents if they were lost) within that time, advise your client that they may (and should) fire them.

5. If one of your client’s employees provides a document that does not satisfy the I-9 requirements, tell your client to simply return the document and ask for another one from the I-9 list.

6. Tell your client to not accept any documents that are not originals, except as stated on the I-9 form.

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This page contains a single entry by Linda Margolin, Esq. published on January 25, 2007 1:56 PM.

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