Responding to public support for a crackdown on illegal aliens living in the country, the federal government has announced new policies and guidelines for worksite enforcement. The U.S. Department of Homeland Security (DHS) is stepping up work place enforcement in a move that could have significant implications for the forest products industry, especially pallet companies and sawmills.
Because the U.S. forest products industry has become more dependent on Hispanic workers in recent years, it will likely be impacted by the changes.
While the new rules, policies and initiatives will not cripple the industry, it could cause problems for anyone who has knowingly or unknowingly hired illegals. Finding workers may become more difficult, which could translate into more delays, higher prices and production inefficiencies.
Homeland Security Secretary Michael Chertoff said, “Our hope is that the key elements of the Senate bill will see the light of day at some point. But until Congress chooses to act, we’re going to be taking some energetic steps of our own.”
It is clear that the new policies are intended to partially address the problem while creating pressure on Congress to develop a more comprehensive solution.
No-Match Letter Quandry
Starting this month, employers who receive a “no-match” letter from the Social Security Administration (SSA) about an employee will have an established procedure to follow, which includes terminating the employee if the problem is not able to be resolved. The regulation clarifies that employers may be held liable if they ignore the “no-match” problems by failing to take specified steps within 90 days of receiving the letter.
Every year, the Social Security Administration (SSA) informs thousands of employers via a “no-match” letter that certain employees’ names and corresponding Social Security numbers do not match.
Sometimes the mismatch results from a transcription mistake or clerical error or name changes due to a marriage that is not reported to the SSA.
The Bush administration was clear to point out that employers should not assume that the mismatch is the result of any wrongdoing on the part of the employee. It stated, “An employer who takes action against an employee based on nothing more substantial than a mismatch letter may, in fact, violate the law.”
The moment that a no-match letter arrives, the employer should follow the steps that DHS recently outlined. First, the company should verifying within 30 days that the mismatch was not the result of a record-keeping error. Second, the employer should ask the employee to confirm the accuracy of employment records. If that does not solve the mismatch, the company should direct the employee to resolve the issue directly with SSA. If these steps lead to resolution of the problem, follow instructions on the no-match letter itself to correct information with SSA. Make sure to retain a record of the verification with SSA.
In cases where the information could not be corrected, complete a new I-9 form without using the questionable Social Security number and instead using documentation presented by the employee that conforms with the I-9 document identity requirements and includes a photograph and other biographic data. Employers unable to confirm employment through these procedures risk liability for violating the law by knowingly continuing to employ unauthorized persons. DHS encourages employers in those instances to dismiss the employee and to follow consistent procedures for all employees regardless of race or ethnic background.
The U.S. Immigration and Customs Enforcement (ICE) has developed a comprehensive interactive Safe Harbor Information Center which will answer no-match related questions, or inquiries may be directed to ICE at 800-421-7105.
Explaining the new policy, Chertoff said, “If work eligibility cannot be confirmed after 90 days, the company is going to have to terminate the employee.”
The new policy solves some problems and creates new ones. Employers have disliked the ambiguity of existing procedures and have been concerned about opening themselves up to discrimination and wrongful termination lawsuits. Clearer procedures give businesses more tools while also reducing the legal ambiguity that some used to skirt the laws.
Chertoff claimed, “The new regulation does provide a safe harbor for employers who follow the guidance and perform due diligence so that they do try to comply with their legal obligations.
While it may offer some sort of safe harbor from the government, business interests are concerned it could cause a sharp spike in discrimination lawsuits even for conscientious companies. American business voices have insisted all along that the government is pushing a problem that it has allowed and created onto them to fix.
Responding to concern about discrimination lawsuits, Chertoff said, “This is really easy. When you get the letter, you have to apply the rule evenhandedly across your entire workforce. Discrimination is not permitted. It is not hard to understand what the rule is.”
According to DHS, the main guideline is to be consistent. Do not make a distinction in how you apply the rule depending on a person’s last name or appearance.
DHS denied that the process is complicated. It downplayed the discrimination concern as long as employers are neutral and evenhanded in their policies. Some private groups may challenge the new regulations in court. Even the press hinted at this possibility during the press conference.
From the employee standpoint, fixing a no-match error eliminates a problem down the line if the worker ever seeks to actually receive some rightful Social Security benefits. Of course, that is assuming the employee is legally allowed to work in the country.
Electronic Verification and New Document Requirements
In the coming months, DHS will reduce the number of documents that employers can accept to confirm work eligibility requirements. DHS hopes that changing the requirements will reduce unlawful employment by weeding out insecure documents now used for identity fraud.
To encourage participation in the Basic Pilot verification system, which has been re-named E-Verify, the Bush administration will soon require all federal contractors and vendors to use E-Verify to check the status of all employees used to service government contracts. Since there are more than 200,000 companies doing business with the federal government, the move is aimed at increasing acceptance and use of the E-Verify system.
E-Verify is a free Internet-based system that allows employers to electronically verify the employment eligibility of their newly hired employees by comparing the information with SSA and DHS databases. DHS claims that E-Verify is the best way to determine employment eligibility of new hires and the validity of their Social Security numbers.
DHS is looking to bolster the information behind E-Verify by cross checking with visa and passport information. Also, the Bush administration intends to seek voluntary participation by states to access photographs and information held in state DMV databases. This might help E-Verify address its deficiency in detecting identity theft.
According to the new initiatives, the federal government will assist states in making use of E-Verify as well as train state and local law enforcement in how to identify and root out suspected illegal aliens.
Employers can register online for E-Verify at https://www.vis-dhs.com/EmployerRegistration, which provides instructions for completing the registration process.
After hiring a new employee and completing the Form I-9 required for all new hires (regardless of E-Verify participation), the employer or agent can submit a query that includes information from sections 1 and 2 of the Form I-9, including:
• Employee’s name and date of birth,
• Social Security Number (SSN),
• Citizenship status he or she attests to,
• A number or I-94 number, if applicable,
• Type of document provided on the Form I-9 to establish work authorization status, and
• Proof of identity, and its expiration date, if applicable.
Response to the initial query is sent within seconds of submitting the query. The earliest the employer may initiate a query is after an individual accepts an offer of employment and after the employee and employer complete the Form I-9. The employer must initiate the query no later than the end of three business days after the new hire’s actual start date. An employer may initiate the query before a new hire’s actual start date; however it may not pre-screen applicants and may not delay training or an actual start date based upon a tentative non-confirmation or a delay in the receipt of a confirmation of employment authorization.
If a company decides to use E-Verify, it is required to verify all newly hired employees, both U.S. citizens and non-citizens. Employers may not verify selectively and must verify all new hires while participating in the program. The program may not be used to prescreen applicants for employment, go back and check employees hired before the company agreed to use E-verify, or re-verify employees who have temporary work authorization.
If an employer would like to automatically generate E-Verify queries from the electronic Form I-9s, several private companies do offer this service. Industrial Reporting Inc. has reviewed software published by Lookout Services that does this. You can find out more by visiting http://www.lookoutservices.net/
Employers may choose to leave E-Verify at any time. According to DHS, participation in E-Verify does not provide automatic protection from worksite enforcement. However, an employer who verifies work authorization under E-Verify is presumed to have not knowingly hired an unauthorized alien, and it is a good way to show that an employer is trying to be a good citizen. To find out more about E-Verify visit www.dhs.gov/e-verify or call 888/464-4218.
Stiff Criminal Penalties Put Employers On Alert
Under Chertoff’s leadership, the DHS has been much more aggressive in terms of criminal enforcement. The U.S. Immigration and Customs Enforcement has made more than 3,200 administrative arrests this year.
Chertoff said, “We’re going to continue to clamp down on employers who knowingly and willfully violate the laws. But at the same time, we want to make sure that employers who do want to do the right thing have effective tools and clear guidance so they can maintain a stable, legal work force.”
Civil penalties have not really worked to deter bad actors. Some companies just view it as a part of doing business. DHS will use existing authority to increase fines by about 25%. Going beyond just fines, the attitude starts to change though when business leaders hear about the possibility of going to jail. That’s why criminal enforcement has become a more common route when the situation warrants it.
The word “jail” has a way of getting people’s attention although the total enforcement capacity still lags way behind the need. DHS has announced that it is increasing the number of agents and beds at detention facilities, improving border detection and deterrence capabilities, and changing flawed policies. But the response is still limited when you consider the scope of the problem.
The Bush administration has fixed some major problems, such as the catch and release policy that failed for years. Now all illegal aliens caught at the border are detained until they can be removed from the country. Critics contend that the steps taken by the Bush administration are too little too late.
DHS admitted that there are going to be economic consequence to tough law enforcement. That is why U.S. Commerce Secretary Carlos Gutierrez spoke alongside Chertoff about new efforts to improve seasonal worker programs and reduce bureaucratic red tape. Gutierrez did not offer many specifics about how it would improve current efforts to help companies find the workers they need to meet production demands.
Gutierrez said, “I believe immigration is the domestic social issue of our time.
While we had hoped to get comprehensive reform passed on Capitol Hill, this Administration remains absolutely committed to addressing this issue. We will not idly sit by as the situation worsens.”
Identifying the looming worker shortage, Gutierrez said, “We do not have the workers our economy needs to keep growing each year. The demographics are not on our side.”
Gutierrez pointed to existing programs on the books that help provide workers in industries like agriculture, landscaping, hospitality and lodging. Farmers and small business owners have complained that these programs are too cumbersome to effectively utilize.
According to Gutierrez, the U.S. Department of Labor will be reviewing ways to make the H-2A agricultural seasonal worker program more workable while protecting the rights of workers. It will also streamline the H-2B program for non-agricultural seasonal employees who work in industries ranging from hospitality to crab picking.
The Bush administration plans to study reforms for high-skilled workers too.
Gutierrez said, “With historically low 4.6 percent unemployment, it is clear that there are jobs Americans aren’t willing to do, or available to do. We must acknowledge this reality.”
Since the U.S. Congress has not acted to institute reforms, state and local governments are jumping on the immigration issue. Gutierrez cautioned, “Without {federal} reform, we’re going to end up with a patchwork of laws nationwide.”
As of this summer, more than 1,400 immigration bills had been submitted by state lawmakers with 170 of those bills becoming laws. Some new laws are being challenged in federal court. This has led to a situation that is becoming increasingly complex for well-intentioned employers to follow.
Even if Congress acts on the issue, the federal government has a credibility gap that will be hard for it to overcome.
Chertoff admitted, “There is a credibility problem the government has built up over 30 years on this issue, because we’ve had 30 years – and particularly after the 1986 act, there was real lack of vigor. And there’s some cynicism and certainly skepticism about whether the government has ever really been serious about enforcement.”
