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.

What the Alabama Department of Labor is Saying about Social Security Discrepancy Letters

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.  Heres 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.  Well stay tuned.

 

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.

Will the Supreme Courts decision in the Arizona case impact the employment provisions of Alabamas Immigration Law?

There have been many headlines regarding the United States Supreme Court’s decision in Arizona v. U.S .  The question before Alabama employers is what will be the practical impact of this decision on the employment provisions  of Alabama’s immigration law?

Before coming to any conclusions, the Arizona case must be considered in combination with Chamber of Commerce v. Whiting, another recent Supreme Court case.  In Whiting, the Supreme Court upheld Arizona’s mandate that all Arizona employers use E-Verify and upheld Arizona’s authority to impose penalties such as the suspension or revocation of the business licenses of in-state employers that employ unauthorized aliens. The Supreme Court held that “While IRCA [the federal law]  prohibits States from imposing ‘civil or criminal sanctions’ on those who employ unauthorized aliens, it preserves state authority to impose sanctions ’through licensing and similar laws.’” §1324a (h) (2).”    

Remember that under section 15 of Alabama’s immigration law, which remained unchanged after recent amendments to the law, employers are  subject to penalties if they knowingly employ, hire for employment or continue to employ unauthorized workers within Alabama. The penalties for hiring unauthorized aliens range from temporary suspension of business licenses and permits for the first violation to permanent revocation of the business licenses statewide for multiple violations.  Furthermore, employers that are found to have violated the law will have to comply with additional reporting requirements for up to three years after discovery of a violation.  As well, Alabama employers who fail to register and use E-Verify will lose the safe harbor protection with respect to the hiring of employees whose employment authorization has been verified through the program.

So what does this all mean? The Arizona decision makes absolutely clear that the Immigration Reform and Control Act of 1986 (“IRCA”) is a comprehensive framework that covers all aspects of enforcement related to the employment of unauthorized workers. It thus calls into question  the states’ ability to impose any penalties not directly related to “licensing or similar laws” on employers for the hiring of unauthorized workers. However, as Pepper mentioned in an earlier post, even with the sweeping preemption language found in the Arizona decision, the Court does not call into question its earlier decision in the Chamber case. Therefore, some of the sections of Alabama’s immigration law, such as the E-Verify mandate and the penalties imposed against those employers that knowingly hire unauthorized aliens, may likely survive legal challenges.

On the other hand, other employment-related provisions of Alabama’s immigration law  like section 17 that provides a claim for discrimination and wrongful termination and section 16 that disallows a tax deduction for the expense associated with employing unauthorized workers (both of which are currently enjoined by lower courts) may be more likely to be preempted by federal law under the rationale the Supreme Court used in the Arizona decision.