Are Your Clients in Compliance?

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1 Are Your Clients in Compliance? What Every Labor and Employment Lawyer Needs to Know ABA Conference March 25, 2010 Conchita Lozano-Batista Eileen Momblanco

2 Where immigrants work Unauthorized Total workers Estimate Share U.S. Total 154,772,000 8,300, % Nevada 1,370, , % California 18,824,000 1,850, % Arizona 3,103, , % New Jersey 4,588, , % Florida 9,231, , % Texas 11,748, , % District of Columbia 329,000 25, % New York 9,673, , % Maryland 2,977, , % Georgia 5,009, , %

3 Where immigrants work

4 Where immigrants work

5 Where immigrants work

6 Immigration Law Subject to Change Federal Law Governs States and Local Government

7 Authorized to Work The Immigration Reform And Control Act of 1986 ( IRCA )

8 Important provisions of IRCA Established I-9 employment verification process Employer sanctions for knowingly hiring undocumented workers

9 Employer sanctions: Unlawful employment: Minimum penalty $375 up to $11,000 on a per person basis. Pattern or Practice: $3000 per employee and/or 6 months imprisonment. I-9 paperwork fines: Minimum penalty of $110 up to $1100 on a per person basis. Unlawful discrimination: Minimum penalty of $375 up to $16,000 on a per person basis.

10 Verifying Immigration Status I-9 Form verifies an employee s: Identity Authorization to work

11 Documents that prove identity U.S. Driver s License U.S. ID Card School ID with photograph Voter Registration Card U.S. Military ID Military Dependent s card U.S. Coast Guard or Merchant Mariner Card Native American tribal document Canadian Driver s License

12 Documents that prove employment eligibility U.S. Social Security Card State Department Certificate of Birth Abroad Original or Certified Copy of Birth Certificate Tribal Document U.S. Citizen ID Card ID Card for use of Resident Citizen DHS Employment Authorization Document

13 Documents that Establish Both Identity and Authorization U.S. Passport U.S. Birth Certificate State Department Certificate of Birth Abroad Permanent Resident Card (green card) Employment Authorization Card issued by DHS Temporary Resident Card Native American tribal document

14 Documents must be unexpired As of April 3, 2009 all documents presented during the I-9 process must be unexpired. If there is no expiration date, they are considered unexpired Employers are not required to complete new I-9 forms for workers who completed I-9 forms using prior version. In addition, employers should not ask workers who presented documents that were acceptable under the prior version of the I-9 to present new documents just because those documents are no longer acceptable. Employers should not reverify workers previously verified under green cards that are now expired.

15 Workers ALWAYS Select the Document(s) to Present The worker has the right to choose which documents he/she will present to the employer. It is against the law for an employer to require a specific document or to require more documents than stated on the I-9 form. No Copies Required

16 Employer obligations Documents must be Facially Valid and Pertain to the Applicant Employers must retain completed I-9 forms and make them available in case of an inspection or audit

17 Time in which to verify Up to 3 Days to Verify Status If employee presents a receipt for replacement documents due to loss/theft, they have 90 days to produce the new documents. An employer who hires an individual for employment for a duration of less than 3 days must still verify documents

18 Reverification Allowed only in 2 cases: Employee Quits and Want to Return to Work for Employer Authorization Documents Have Expired

19 Reverification If an employee presents a document with an expiration date, the employer must reverify the employee s eligibility to work when that document expires. Employees who present documents establishing they have permanent work authorization, should not be asked to reverify their authorization to work, even if documents have an expiration date.

20 An Employer may not reverify because: Strike or Labor Dispute A Lay-Off For Engaging in Union Activity

21 Retention Requirements I-9s must be retained for all active/current employees Retention Rule: I-9s must be retained for terminated employees for three years after date of hire or one year after date of termination, whichever is LATER.

22 Document abuse Requiring workers to present INS or USCIS issued documents Requiring those who appear foreign to show documents proving status Greater scrutiny and rejection of valid documents from immigrants

23 ICE Enforcement ICE has the authority to conduct I-9 audits. DOL and OSC also have the authority to review I-9s ICE will often conduct worksite raids with other federal or state agencies ICE must have a warrant or the employer s permission to enter a private workplace ICE can enter a public space without a warrant

24 Immigration enforcement during labor disputes The DOL and the DHS have an MOU governing communication between them re immigration status of workers. The MOU states that in complaint-driven investigations by DOL, DOL will not inquire about immigration status or share such information with DHS. However, where DOL identifies an industry or employer as a major violator of wage and hour laws, they will report findings to DHS.

25 Electronic Employment Verification

26 E-Verify E-Verify is an internet program that allows employers to electronically verify a worker s employment authorization by directly checking DHS and SSA records Over 150,000 employers currently using this

27 How E-Verify works Employers must still follow the I-9 process, but: Employers can accept a document as proof of a worker s identity only if the document includes a photograph; and Employees must submit an SSN Employer verifies identity and employment eligibility with SSA and DHS/USCIS by entering information into the Basic Pilot website

28 How E-Verify works If SSA is unable to verify the workers records, the employer will receive a tentative nonconfirmation notice from SSA. After the SSA process is complete, noncitizens employment eligibility is verified by USCIS If USCIS is unable to verify the worker s employment authorization, the employer will receive a tentative nonconfirmation notice from USCIS

29 How E-Verify works Worker has 8 business days to get proof from SSA that he/she has submitted evidence to prove status If the worker does not contest the finding within the time allowed, it automatically becomes a final notice and the employer is required to fire the worker

30 How E-Verify works On September 25, 2007, USCIS launched a photo screening tool to allow employers to check an employee's Employment Authorization Document (EAD) or Permanent Resident Card (green card) against DHS immigration databases. The employer must compare the image in the DHS database with the photo on the ID (not the worker).

31 E-Verify requirements A participating Employer must post a notice stating they are using E-Verify To participate, Employer must sign MOU with DHS agreeing that: Employer will not submit an inquiry to E-Verify until after a worker is hired and an I-9 is completed; Employer will use E-Verify only for new employees, not those hired prior to execution of the MOU;

32 E-Verify requirements Employer will not discriminate against employees based on national origin or citizenship status; Employer will not use E-Verify to selectively verify employment eligibility or to reverify; and Employer will not take adverse action against an employee while they are challenging a tentative nonconfirmation result, unless knowledge is obtained of lack of work authorization

33 Disqualification from E-Verify Any violations of the MOU by the Employer should result in the termination of the Employer s use of E-Verify

34 E-Verify Federal Contracts All Federal Departments and agencies have been instructed to use E-Verify. Federal contractor rule in effect Sept. 8, 2009 Applies to all employees working on a federal contract; Applies to all new hires whether or not working on the federal contract; and Employer can choose to have it apply to all current employees whether or not they work on the contract

35 E-Verify Federal Contracts Applies to all federal contracts over $100K and lasting longer than 120 days Contracts must include provision that contractors: Enroll in E-Verify; Use E-Verify for all new U.S. hires; Use E-Verify for all workers assigned to contract; and Include a provision for certain subcontracts that are over $3000 and last more than 30 days

36 E-Verify Federal Contracts Employees assigned to a contract means hired after Nov. 6, 1986 and are directly performing work on the contract. Employees not considered assigned to a contract if they: Normally provide support work, such as indirect or overhead function; and Do not perform any substantial duties applicable to the contract

37 E-Verify Federal Contracts Contractors may reverify all existing workers hired after Nov. 6, 1986, whether or not assigned to the contract If contractor does this, it must notify DHS and initiate verification within 180 days of notice to DHS or enrollment in E-Verify Legality of this provision is highly questionable

38 E-Verify Union hiring halls are specifically excluded from using E-Verify to verify status of dispatched members. Can be subject of collective bargaining May be mandatory subject

39 E-Verify Participation in E-Verify is still voluntary in all states, but: Arizona, Colorado, Georgia, Minnesota, Mississippi, Missouri, North Carolina, Oklahoma, Rhode Island, South Carolina, Nebraska and Utah Some states require for all contractors, others for state agencies and/or contractors Illinois law banned its use, but District Court found law unconstitutional on March 12, 2009

41 What is a No-Match letter? Notice of failure to receive proper credit for earnings due to some mismatch $519 Billion currently being held in SSA suspense file million discrepancies in the SSA database Over 70% belong to native born citizens.

43 SSA No Match Letter No match letters are sent to individuals whose name and/or SSNs listed in their employer s records do not match SSA records. The purpose of the letter is to inform workers they are not getting SSA credit for their earnings. Reasons for no match letters include: misspelled names, name changes and database errors. The letter does not prove wrongdoing or provide indication that a person is undocumented.

44 SSA No Match Letter SSA first attempts to send the letter to the workers home address. If inaccurate, SSA sends letters to employers. Letters also sent to employers when at least 10 employees, or if ½ of 1% of total names sent to SSA during the year result in a no-match.

45 SSA No Match Letter Employer obligation: Inform the Employee About the Problem Nothing More

46 DHS Rule on No Match DHS proposed new rules for employers receiving no-match letters from SSA Under proposed rule, DHS could use failure to follow new procedures as evidence employer had constructive knowledge employees were unauthorized to work WRR, AFL-CIO, et al. v. Chertoff, et al. filed on 8/29/07 Preliminary injunction granted on 10/10/07

47 No-Match rule withdrawn On October 7, 2009, DHS issued a final rule withdrawing the No Match rule Current state of the law: Employer obligation is to inform the employee about the problem and nothing more

48 Unions Can Challenge Procedures subject to negotiation Decision to terminate employee is subject of bargaining Subject to grievance procedure Not just cause to terminate because of receipt of no-match letter Aramark Decision 2008

49 Hoffman Plastic Compounds 2002 Decision IRCA is more important than NLRA Undocumented workers cannot be reinstated or given back pay Agri-Processors upholds employee status

50 Implications of Hoffman Can sign authorization cards Can vote in elections Can be represented Can be fired without recourse to NLRB Can submit grievances and bargain Wage and Hour, FLSA, EEOC all apply to undocumented workers Workers compensation in some states Unemployment Benefits: No

51 Identity Theft Arizona uses this as alternative US Supreme Ruled on this issue that government must prove intentional use of someone else s number Problem when social security number used by employer or union or trust fund

52 New Directive on worksite enforcement issued on April 30, 2009 by DHS DHS issued a press release promising more worksite enforcement efforts, including criminal prosecution of employers Directive promises arrest and removal of undocumented workers Administration praises Napolitano s AZ Workers Act

53 Contact Information Conchita Lozano-Batista Weinberg Roger & Rosenfeld 1001 Marina Village Parkway, Suite 200 Alameda, CA Phone: (510) Eileen Momblanco Laner Muchin Dombrow Becker Levin & Tominberg, Ltd. 515 N. State Street, Suite 2800 Chicago, IL Phone: (312)

South Carolina Immigration Compliance and Enforcement

South Carolina Immigration Compliance and Enforcement March 5-7, 2013 David Dubberly Certified Specialist in Employment and Labor Law South Carolina Illegal Immigration Reform Act (as amended in 2011)