I was invited to attend the ceremony of the signing of the Memorandum of Understanding between the Birmingham District Office of the Equal Employment Opportunity Commission and the Consulate General of the United Mexican States from the Atlanta, Georgia office. The EEOC’s Birmingham District Office’s territory includes all of Alabama, most of Mississippi and the panhandle of Florida. The Mexico Consulate General’s territory located in Atlanta includes all of Georgia, all of Alabama, and parts of Tennessee.
Other invited guests included representatives from the NAACP, the National Labor Relations Board, and a Hispanic Outreach organization. My role was to serve as a representative of Alabama employers who have an interest in immigration matters.
EEOC Director Delner Franklin-Thomas stated that the purpose of the MOU was to establish cooperation between the Mexico Consulate General and the EEOC relating to the education of immigrants on their rights under the laws enforced by the EEOC, including the laws that prohibit national origin discrimination.
Emanuel Smith, the EEOC’s Regional Attorney, explained that the number of national origin charges have doubled in recent years.
Although not expressly stated, it appeared clear that the EEOC intends to focus on national origin discrimination claims by immigrants, regardless of whether such individuals are authorized to work in the United States. The EEOC is focused on enforcement of the EEO laws, and will leave enforcement of the immigration laws to other government agencies who have such responsibility.
What does this mean for employers?
- The additional outreach may result in more Hispanics and Latinos pursuing national origin claims. If such workers’ fears relating to interactiing with the government and the courts are alleviated, they will feel free to pursue their rights.
- The fact that a worker may not be authorized to work or even be authorized to be present in the United States will not matter one bit to the EEOC.
Having the unfortunate experience of negotiating settlements of fines imposed by ICE following an inspection, I’ve experienced a few things, some of which are similar to others’ experiences (as I have read) and some perhaps not, which I share below:
- Following an inspection but prior to the issuance of a Notice of Intent to Fine (“NIF”), consider reaching out to your local ICE attorney and determine if negotiations may occur pre-NIF. My most recent negotiation involved a pre-NIF negotiation. What I was told is that the ICE attorney had more flexibility to negotiate prior to the issuance of the NIF. It seems logical, and based on my experience, I believe it to be true. I would negotiate pre-NIF again given the opportunity.
- Of course the fines may be reduced and the reduction does not have to make sense. While it may be helpful to find arguments to support the reduction (such as errors in the NIF), ICE’s settlement number does not have to correlate in terms of the math and the schedule of fines. In other words, I have found the process to be similar to negotiating a settlement of a lawsuit — the numbers can be a little arbitrary, as long as there is a dispute going on.
- ICE may be willing to stretch out payments as long as 72 months, and based on the very low applicable interest rate, that’s a deal!
- Don’t agree that the settlement will bind all related entities or a particular individual such as the owner. It should only bind the employer that was the subject of the inspection.
- ICE can agree to not issue a press release, although it can’t agree not to respond to inquiries or requests about the settlement. Avoiding a press release may be of value to you.
It’s not a pleasant process, but with some help, you can make the best of the negotiation and get the best deal you can.
The American Immigration Lawyers Association recently published a consumer advisory for potential beneficiaries of President Obama’s Executive Orders relating to Deferred Action. The advisory provides some summary information that is helpful for businesses to understand as well, including:
- Deferred Action may be available to two groups of undocumented individuals who have been living in the U.S. since January 1, 2010: (1) People who came here as children; and (2) Parents of U.S. citizens or lawful permanent residents.
- No one can apply yet. Applications for expanded Deferred Action may be able to apply in mid-February, and applications for the new Deferred Action may be able to apply in mid-May.
- Not everyone who applies will qualify. There are other requirements that must be met other than being a parent of a citizen or permanent resident or being a childhood arrival.
- Some unscrupulous people are trying to take advantage of individuals who may be seeking Deferred Action by providing inaccurate information or making promises that can’t be kept.
In addition, there are some, and may be more, legal challenges to President Obama’s Executive Action that could delay or otherwise substantially change the process. For now, businesses should stay abreast of the issues and understand the impact they may have on potential future authorized workers.
By virtue of President Obama’s executive action, there will be more potential work-authorized employees to hire. The executive action increased the number of Deferred Action for Childhood Arrivals beneficiaries, who are eligible for employment authorization if they file a petition and receive an Employment Authorization Document I-766. Employers need to get familiar with the Employment Authorization Document if it is presented by the employee when completing the Form I-9.
With the increased number of potential beneficiaries also comes the increased possibility that employers will face additional challenges with existing or former employees. Here are some Q&As that hopefully will be useful:
- What should an employer do if it learns that one of its existing employees has filed a petition for work authorization? The employer cannot under the law continue to employee the individual because the employer now has actual knowledge that the employee is not currently work authorized. The employee should be immediately terminated or the employer will face the risks associated with continuing to employee an unauthorized worker.
- What if an employer has terminated an employee in the past due to the fact that it was discovered (either through an ICE audit or internal audit) that the employee was not work authorized and now such employee seeks to be reemployed as a result of the employee’s new work authorization? The employer may evaluate that employee’s application for employment the same as any other employee who is currently work authorized.
- What should an employer do if an existing employee presents an Employment Authorization Document I-766, but the employee previously attested at the time of hire to being a U.S. citizen or Lawful Permanent Resident on his I-9 Form and presented false documents for the purpose of completing the I-9 form? This is a little tricky, because the employee is now work authorized but lied in the past. The employer may have a written honesty policy that prohibits an employee from submitting false information or documents to the employer. Consistent disciplinary or termination in response to violations of a honesty policy may allow the employer to address the past documentation fraud, but if the employer has not been consistent in its approach to other types of violations, then adverse action against the employee may draw the attention of the Office of Special Counsel, which investigates discrimination.
Recently, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), which enforces the anti-discrimination provisions of the Immigration and Nationality Act (“INA”), issued a technical assistance letter providing guidance on what is called “over-documentation.”
Over-documentation occurs when an employer requests or accepts more documents than required for the proper completion of Section 2 of the I-9 form. For example, an employer might record a U.S. Passport, which is List A document, and also a social security card, which is a List C document. Because an employer need only record either a List A or a List B and List C document, such action would constitute “over-documentation.”
It’s a common thing by employers. I see it all the time. Here’s what the OSC said about this practice:
- “An employer may violate the anti-discrimination provision of the INA if it requests more or different documents or rejects reasonably genuine-looking documents on the basis of citizenship or immigration status or on the basis of national origin during the I-9 process.”
- “If an employer requests more than one List A or a combination of one List B document and one List C document, a violation of the anti-discrimination provision of the INA will depend upon whether the employer made any of those requests because of an employee’s citizenship or immigration status or because of an employee’s national origin.
Based on my experience, most employers that have over-documented their I-9s have not “requested” more documents than required, but instead, have simply just recorded everything the employee gave them. So, that raises the question of what should an employer do if an employee hands them numerous acceptable documents for the I-9 completion.
Here’s my suggestion: Either tell the employee exactly what you need (i.e., a List A or a List B and List C document), and let the employee then choose what to provide, or just grab the document(s) that you need and not record the rest.
Just remember with I-9 completion, more is not better.
The news about Grand American Hotel paying $1.95 million to settle ICE fines because some of its managers created employment agencies to rehire unauthorized workers is a reminder to employers that you can’t do indirectly what you can’t do directly. Apparently, a previous ICE audit resulted in the termination of numerous unauthorized workers from the hotel, but some hotel managers thought they could beat the system by hiring these same workers through some type of leasing agency. It didn’t work.
The issue isn’t uncommon. During an ICE audit, an employer may receive a notice stating certain employees are not authorized to work. Sometimes the employer may have a properly completed I-9, but the employee has provided fraudulent or “suspect” documents. These employees may be terminated as a result. When an employer loses a large percentage of its workforce, it often looks for ways to keep the business running as it had before.
I’ve been asked, “Can we have these terminated employees go work for a temp agency and come back to work for us?” The answer is, “Absolutely not!” The employer already has actual knowledge that these individuals are unauthorized.
The Grand America Hotel news also is a reminder to employers that the immigration-related compliance of its contingent workforce (e.g., independent contractors) in general is important. Employers should no longer feel any comfort with the fact that the contingent workers are not technically W-2 employees, especially if there are indications (e.g., “constructive knowledge”) that such individuals are unauthorized.
What should employers do?
- Have concrete contractual provisions with its independent contractors and leasing agencies relating to immigration compliance; and
- Consider auditing its contractors to ensure they are doing what they are legally required to do to ensure their employees are authorized to work.
In our previous blog, we speculated about whether the recent letters Alabama employers have been receiving from the Alabama Departement of Labor regarding alleged “incorrect/invalid” social security numbers was an attempt to enforce the Alabama Immigration Act. I decided to call the Alabama Department of Labor and inquire about the letter. Here’s how it went:
I called Vivian Cooper who issued a letter to one of our clients. She was on the phone and the individual who answered the phone asked if someone else could help. I explained the subject of my call and she routed me to “Tony”. Here is what Tony said.
- When asked how the names/numbers were compiled, he said that they were pulled from kickbacks from their software system, and not the result of any interaction with the Social Security Administartion or other federal agency.
- Tony said that most of the discrepancies with social security numbers have been due to name changes.
- When I mentioned to him that we were seeing a lot of foreign nationals and Latinos/Hispanics on the lists, he said that citizenship status had nothing to do with the lists. I then asked whether Hispanic double last names could be causing the issue, and he said that is very possible.
- In terms of what to provide in response, he said either a copy of the social security card or the E-verify confirmation – there was no indication that both had to be provided. I mentioned that E-verify confirmation would only exist if the employer was an E-verify participate at the time of hire, but he did not seem to be very familiar with E-verify rules.
- When I asked what would be done if the social security card or number turns out NOT to be legitimate, he said that they had not figured out what to do about that yet. He said that some employers have turned in tenative non-confirmations from E-verify and they are wondering what to do with them.
- I then just asked him if this process has anything to do with the Alabama Immigration Act, and he said no. He said this was not about work authorization. Rather, it was just about cleaning up their records.
- I asked him if they have been receiving a lot questions, and he said they have received some but most employers were just responding with what they have.
So, it remains to be seen what the Alabama Department of Labor will do with the information it receives from employers and whether there will be an follow-up in the event an employer provides a copy of a social security card that the Department determines to be invalid. We’ll stay tuned.
Some Alabama employers recently received an interesting letter from the Alabama Department of Labor that goes something like this:
“An audit of your wage report for the quarter… shows incorrect/invalid social security numbers were reported. … Please review the attached printout and provide the correct social security numbers of each employee. Listed below are the acceptable documentations to be submitted:
Copy of valid social security card
Proof of validation through U.S. Citizenship and Immigration Services E-Verify website
Failure to respond WITHIN 30 DAYS may result in taxes and/or penalties.”
A letter pointing out a discrepancy with a social security number is not that surprising, but the Alabama Department of Labor’s request for E-verify confirmations is a little bit of a shock and leads to some questions, such as:
- Is the Alabama Department of Labor trying to enforce the Alabama Immigration Law by confirming that employers are using E-verify? (I’m not sure the Alabama Department of Labor has the authority to ask for E-verify confirmations on the same basis as the federal government agencies such as ICE).
- Is this letter about ensuring employees are work authorized?
- What will be done with the information provided to the Alabama Department of Labor?
While the answers to these questions are unclear, employers who receive these letters should proceed cautiously in contacting the applicable employees and asking for documentation to confirm their social security numbers. There are implications both in terms of avoiding discrimination claims investigated by the Office of Special Counsel and in terms of avoiding worksite enforcement fines by ICE.
These letters suggest that the Alabama Department of Labor actually may be kickstarting enforcement of state law, HB56, that requires that employees be work authorized. Remember that HB56 Section 15 violations includes business license suspension for 10 days for the first offense. That could be painful.
Recently, we assisted a new client who had received a Notice of Intent to Fine from ICE following an I-9 inspection. It was a sad situation. This client had a slim profit margin and the amount of the fine was potentially devastating to the business. It’s rare that we have a client cry in an initial meeting regarding I-9s like this one did. (We certainly have had many who have wanted to cry or had reason to).
Fortunately, after we reviewed what the client had submitted to ICE through the inspection process, we were able to make some arguments and negotiate to reduce the fines by almost 50% and obtain a reasonable payment plan.
From this experience, here are some lessons this employer learned the hard way.
- It is impossible to correct I-9 deficiencies after ICE comes knocking. Once ICE serves its Notice of Inspection, you only have three business days to respond. Besides not having time to make corrections in that short time period, ICE may not view such corrections as valid because they happened after the Notice of Inspection occurred. So, get your I-9s completed and corrected before you are audited.
- Calling an attorney after you are issued a Notice of Intent to Fine is like calling a plumber after your house is flooded. The plumber may be able to fix the problem going forward, but most of the damage is already done.
- Some fines can be avoided if you know the rules relating to technical and substantive violations, how to properly correct I-9s, the benefits of presenting copies of the documents associated with the I-9s, and the significance of no-match letters. If you are going to rely on the ICE auditor to teach you, just forget it, which brings me to the last lesson….
- The ICE auditor is not your friend. She may say that education and compliance is the main goal, but you will be fined if a fine is possible. She may even say that you should not worry about being fined during the process, and then fine you anyway.
Our client still benefitted by obtaining counsel after receiving the Notice of Intent to Fine. We could have done so much more, though, had we been involved prior to and during ICE’s inspection.
The U.S. Citizenship and Immigration Services (“USCIS”) recently announced an ehnacment to the E-Verify program to combat identity fraud with respect to social security numbers. Basically, USCIS will “lock” social security numbers that appear to have been fraudulently used. If an employee provides a locked social security number while completing the I-9 form, E-Verify will generate a Tentative Nonconfirmation (“TNC”), which then will require the employee to contest the TNC at a local Social Security Administration field office.
Prior to this enhancement, USCIS believed it was more likely that a stolen social security number would not raise any red flags or result in a TNC, if the employee also provided the name and date of birth of the individual to whom the social security number belonged. Thus, for example, if I stole the name, date of birth, and social security number of John Smith, I may get through the E-Verify process with no problem, because there was no mechanism to catch that the social security number had been stolen.
Combating identify fraud is something everyone can support, but here are the bad news for E-Verify employers. Multiple TNCs may result in USCIS sharing such information with ICE, which in turn may result in an audit of the employer’s I-9s and other work authorization processes.
So, here is the “key” to the lock out. Employers must focus on I-9 compliance first and foremost. Specifically, employers should make an honest effort to examine whether the original documents presented by the employee appear to be genuine and belong to the employee. If the employee chooses to present a social security card as a List B document, pay close attention and make sure it appears to be genuine. (In conducting audits, I have seen many fake social security cards that even my 10 year old could have spotted.) If it’s reasonably clear that the documents presented are fake, the employee should not even get through the I-9 process, thus avoiding the social security number being run through E-Verify.
E-Verify employers who ignore or don’t even try to identify fake documents and thereby rely on E-Verify as a safety net are making a mistake. It is no safety net, and the fact you used E-Verify and the employee does not receive a TNC will provide no immunity from liability if it turns out that the documents presented by the employee, including the social security card turn out as fake as monopoly money. Obtaining some basic training on spotting fake documents will go a long way for E-Verify employers, now more than ever.
Also, employers must remember that the employee has a choice of what documents to present. Requiring an employee to present specific document to avoid a TNC likely will be considered document abuse. As we have discussed in prior posts, the Office of Special Counsel receives statistical analysis from E-Verify regarding the types of documents presented by employees and initiates enforecement actions when they find patterns that suggest an employer is mandating a particular set of documents be presented for I-9 purposes.