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.

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.

The Key to E-Verifys Lock Out Enhancement

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 employers 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 its 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 dont 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.

 

Employers Get Ready, Set, Go . New 2 Page I-9 is HERE

On March 8, 2013, USCIS will release the much awaited, and somewhat dreaded, two page I-9 Form. Click here to see the advanced Fed. Register Notice.   You’ll see format changes, new fields (some mandatory, some optional), clarified instructions and much more.   Click here to see earlier-proposed versions of the form released on 3/27/2012 and 8/23/2012.   The new, revised Form I-9 will contain a revision date of “(Rev. 03/08/13)N.”  Once available, a copy of the new form will be available on the USCIS webstite. Employers should begin using this new form immediately.

Here are a few key things to know:

By May 8, 2013, employers must be using the new form exclusively.  Using the old form after May 8 will be a basis for penalty assessment.

  • The timeframes for completing  and retaining the I-9 Form remain the same.
    • Section 1 of the Form I-9 must be completed (and signed) by the employee on the first day of work for pay or before the first day of work for pay, if the employer has offered the individual a job and if the prospective employee has accepted it.
    • Section 2 of the I-9 Form must be completed (and signed) by the employer within three business days of the employee’s first day of work for pay.
    • Section 3 of the I-9 Form (if required) must be completed by an employer if an employee’s employment authorization or documentation of employment authorization has expired – re-verification must occur on or before the employee’s work authorization expires.   An employer may choose to complete Section 3 when an employee is rehired (within three years of the date that Form I-9 was originally completed) or when an employee changes his or her name.
    • Just as with the expiring Form, employers must retain the new Forms for three years from date of hire or one year from date of termination whichever is longer.

For employers using an electronic I-9 system, ICE’s position remains: “buyer beware;” each employer is ultimately responsible for ensuring system compliance. Therefore, please ensure your vendor is aware of this new release. Do not be afraid to ask the tough questions to ensure your vendors system is compliant with the regulations. We know that some vendors, including LawLogix, are aware of this development and have been diligently working to make sure the new I-9 Form is timely available on their system.