Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw LLP. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
Because of the national debate on immigration reform, including highly publicized demonstrations, there is increased focus on existing U.S. immigration laws. As every employer knows (or should know), there are strict requirements involved in complying with the immigration laws at the time of hire. Many employers are unaware of the potential liabilities for non-compliance, including the potential for employment discrimination claims. This article will provide an overview of these issues.
Hiring
The Immigration Reform and Control Act of 1986 was enacted to end the unauthorized employment of illegal immigrants by imposing penalties on employers who knowingly hire or continue to employ those who are not authorized to work in the United States. Employers are required to verify, through specific documentation and other procedures, the identity and work authorization of all individuals who are hired after November 6, 1986, whether or not such individuals are U.S. citizens.
Under the act, the employer must attest under penalty of perjury on the Department of Homeland Security Form I-9, Employment Eligibility Verification, that it has examined the potential employee’s documentation and has verified that such individual is eligible to work in this country. There are three categories of documents that can be utilized:
• those that establish both identity and employment eligibility (List A);
• those that establish identity only (List B); and
• those that establish work eligibility only (List C).
While documents from these lists must be provided by the potential hiree, the employer may not specify which documents the individual must provide from the lists in order to satisfy the documentation requirement.
In addition, the employer must require the individual to produce original documents at the time of hire, although there are limited exceptions where the individual can provide a receipt showing that the individual has applied for a replacement document or an extension of the expiration date on an existing document.
Employer Defenses
Under the act, an employer may have an affirmative defense to a charge that it has violated the act if it can establish that it complied in good faith with requirements to verify the identity and employment eligibility of the hiree. In order to establish this defense, the employer should have developed a written procedure with supporting documentation of its continuing efforts to comply with the act. An affirmative defense must be proved by the employer.
The employer may also be able to establish a good faith defense if it has made certain technical or procedural errors in preparing or completing the information required on the Form I-9, such as missing addresses or dates, lack of attestation by the employee on the form, or obtaining expiration dates on documents on List B. If an agency inspection occurs and these deficiencies are noted, the agency must identify the deficiencies to the employer and allow it 10 business days to correct. Failure to correct can lead to sanctions. If the agency reviews the documents and determines that there has been a systematic “pattern or practice” of violations, there is no good faith defense available.
SSN “No Match” Inquiries
Many employers have received so-called “no match” letters from the Social Security Administration (SSA) indicating that the Social Security number (SSN) on the W-2 wage report submitted by the employer to the SSA does not match with the employee name in the SSA records. The letter also states that it does not purport to be a determination as to the employee’s immigration status (i.e., whether the employee is lawfully employed under the act).
Since the SSA has no jurisdiction under the act, the letter informs employers not to take adverse employment action against the employee merely because of the “no match” discrepancy. In fact, taking such adverse action could violate state and federal employment laws and the act.
While the SSA letter is not a determination as to immigration status, it cannot be ignored by the employer. The employer must consider verifying the employee’s SSN by examining the Social Security card. The employer should document its requests to the employee regarding such verification and the consequences of failure to provide a valid SSN, which may include the employee’s inability to continue employment.
A further issue that can arise is if the employee, in response to the verification request, obtains a valid SSN that is different than the original SSN. The employer must carefully investigate this activity since the employer has potentially been put on notice that the employee was previously unauthorized to work; further, the employee may have committed fraud on the employer and the agency.
This investigation is important since it is a felony to make false statements on the Form I-9 or to use false documents to obtain employment. These criminal violations are not excused if the employee subsequently obtains lawful documentation. In these instances, an employer must consider utilizing its existing employment disciplinary policies regarding potential criminal conduct in the workplace or lying in the hiring process. If the employer does decide to continue to employ the individual, a new Form I-9 must be completed and the employer must retain the original Form I-9 to establish that there was compliance with the verification requirements of the act at the time of hire.
Complaints and Investigations
Under the act, any person or entity may file a complaint that the employer has violated the act. This complaint may trigger an investigation, although the agency can conduct an investigation without a complaint. The agency has a right to examine relevant evidence of any person or entity being investigated.
Since the act provides for civil penalties (monetary fines) for (1) hiring an illegal immigrant knowing that such individual is not authorized to work in the United States, (2) continuing to employ an unauthorized immigrant, or (3) for violations of the paperwork requirements, as well as criminal penalties (monetary penalties and imprisonment) for a “pattern and practice” violation, the employer should consider promptly obtaining competent legal counsel to advise it during the agency inspection.
In the event of an agency inspection, the employer’s actions (particularly its intent) are the focus of the inspection. Therefore, it is important to demonstrate the employer’s “good faith” efforts at compliance. Employer representatives must be advised of their rights during the investigation, including potential individual criminal liability for lying to the investigator or submitting false documentation during the investigation in an effort to avoid potential liability. Employees must be advised that they may waive their rights against self-incrimination during the investigation by responding to inquiries during interviews or agreeing to sign written statements or allowing tape-recorded interviews.
Employment Discrimination
In addition to the potential liabilities arising out of the verification of employment during the hiring process, the employer must also be aware of the potential liability for employment discrimination charges under the act or under Title VII of the Civil Rights Act of 1964. An individual who is a U.S. citizen or an immigrant who is lawfully admitted to this country cannot be discriminated against during the hiring process or their employment because of their national origin or citizenship. Such discrimination complaints may fall within the jurisdiction of the Equal Employment Opportunity Commission or the Department of Justice, Civil Rights Division, Office of Special Counsel.
If an employment charge is received, the employer will need to marshal its factual and documentary evidence to establish that the employment law action complained about was not related to the national origin or citizenship of the complainant. Thus, the employer must establish a legitimate, non-discriminatory reason for its action against the employee or applicant (e.g., employee’s lack of qualifications for the job; absenteeism; poor performance; insubordination; failure to comply with employment, safety, or health policies; threatening or violent behavior, etc.).
It can be expected there will be enhanced enforcement of the provisions of the act as the agency focuses on compliance while the national debate on immigration continues. An employer must be prepared to provide proper documentation to the agency to establish that it has met the verification requirements of the act at the time of hire and throughout the employment relationship. Since this is a technical area, prudence would dictate that the employer seek competent legal counsel as it develops and administers its program to avoid civil and criminal liability.
For a detailed analysis of the act and the topic of employer liability, see “Employer Sanctions” in 2004-05 Immigration and Nationality Law Handbook - Volume 2.
Labor and the Law - October 2006 Render