Watching the Signing of the MOU Between the EEOC and Mexico Consulate

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 EEOCs Birmingham District Offices territory includes all of Alabama, most of Mississippi and the panhandle of Florida.  The  Mexico Consulate Generals 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 EEOCs 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.

Consumer Advisory for Potential Beneficiaries Of President Obama’s Executive Order Is Useful for Employers to Understand as Well

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.

Alabama Employers Will Face Issues as a Result of President Obamas Executive Action

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.

Are We Seeing Enforcement of Alabamas Immigration Law? Maybe So

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 Labors 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?  (Im 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.

Alabama Department of Agriculture and Industries Advices Its Members to be Ready for ICE Audits

Recently, the Commissioner for the Alabama Department of Agriculture and Industries released an advisory notice to its constituents stating that Immigration and Customs Enforcement (ICE) visited an Alabama business to conduct an investigation. Further, the advisory cautioned Alabama employers to ensure their I-9 and E-Verify documents are compliant and in order as required by federal and Alabama law.

We obtained confirmation from ICE and our other sources that this event is not an isolated ICE enforcement audit, but is part of a new wave of enforcement activity nationwide. Usually, they will audit anywhere between 500 and 1,000 employers in each of these initiatives. Now is the time to get ready for an ICE audit.