Employment Law Half-Day Seminar

Transcription

1 Employment Law Half-Day Seminar This notebook is a publication of Miller Nash LLP. It is provided for informational purposes only and does not constitute legal advice or legal opinion about specific situations. Scan to learn more about our Employment Law & Labor Relations Practice Readers are urged to consult with legal counsel concerning their own specific facts and circumstances and any specific legal questions. For further information about the contents of this notebook, please contact Miller Nash Client Services by at clientservices@ millernash.com or by phone at Copyright tel Employment Law for the Information Society October 25, 2011 Seattle, Washington November 1, 2011 Portland, Oregon

2 WHEN WILL THE INFORMATION AGE ARRIVE? E-VERIFY, NO-MATCH LETTERS, AND THE IMMIGRATION REFORM AND CONTROL ACT Joseph Vance Employers face a special problem when dealing with employees', and potential employees', immigration status in addition to constantly changing laws and regulations, it is unclear what an employer is to do when the various federal (and now, at times, state) laws conflict. Employers are often left in the unenviable position of subjecting themselves to either (1) government penalties for employing an unauthorized worker or (2) civil liability based on citizenship status or national origin discrimination in making employment decisions. Here, we give tips on how an employer can meet its obligations under the Immigration Reform and Control Act ("IRCA") without violating the anti-discrimination provisions of the Immigration and Nationality Act (the "INA"). I. CONFLICTING STATUTORY FRAMEWORK: IRCA VERSUS ANTIDISCRIMINATION PROVISIONS OF THE INA. A. Employer's obligation to verify eligibility of employees for employment and sanctions for knowingly hiring undocumented workers. IRCA was passed to control and deter illegal immigration into the United States. IRCA established the Form I-9 employment eligibility verification process. To comply with the law, employers must verify the identity and employment eligibility of each person they hire by completing and retaining a Form I-9 for each employee. IRCA also establishes employer sanctions for employers that "knowingly" hire or continue to employ undocumented workers. An employer that violates IRCA is subject to both civil and criminal penalties. "Good faith" compliance with the I-9 process is an affirmative defense that the employer has not violated IRCA. U.S. Immigration and Customs Enforcement ("ICE"), an agency in the Department of Homeland Security ("DHS"), is responsible for enforcing the employer sanctions of IRCA. B. Antidiscrimination provisions of the INA. While employers face liability for hiring undocumented workers, they also face liability for discrimination on the basis of citizenship status or national origin. IRCA created the Office of Special Counsel for Immigration Related Unfair Employment Practices ("OSC") to enforce the anti-discrimination provisions of the INA. These provisions prohibit the following four types of unlawful conduct. 1. Citizenship or immigration status discrimination. Employers may not treat individuals differently because they are, or are not, U.S. citizens or work-authorized individuals. With limited exceptions, U.S. citizens, recent 1

3 permanent residents, temporary residents, asylees, and refugees are protected from citizenship status discrimination. 2. National origin discrimination. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding "foreign." 3. Unfair documentary practices during Form I-9 process. Employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin. U.S. citizens and all work-authorized individuals are protected from document abuse. 4. Retaliation. Individuals who file charges with OSC, who cooperate with OSC investigation, who contest action that may constitute unfair documentary practices or discrimination based on citizenship or immigration status or national origin, or who assert their rights under the INA's antidiscrimination provision are protected from intimidation, threats, coercion, and retaliation. C. Avoiding discrimination in recruiting, hiring, and Form I-9 process. With the conflicting statutory provisions, it often seems to employers that there is a narrow path of acceptable behavior, with cliffs on either side. They face the challenge of taking reasonable steps to ensure that they are not employing employees who are not authorized to work in the United States, while at the same time dealing with the threat of liability for violating the antidiscrimination provisions of the INA. In numerous situations, employers appear required to take action to verify or reverify identity and work authorization of employees without clear guidance and standards as to how to proceed. In dealing with this difficult situation, there are a couple of basic principles to keep in mind. First, while employer should be sure to comply with the Form I-9 verification procedures, they should not do anything more than is required. Going the "extra mile" in complying with IRCA requirements only increases the risk of being liable for violating the antidiscrimination provisions of the INA. Second, employers should treat all employees equally when recruiting and hiring, and when verifying employment authorization and identity during the Form I-9 process. II. "NO MATCH" LETTERS. Earlier this year, the Social Security Administration announced that it would resume sending "no match" notices to employers. A "no match" letter puts both the employer and the employee on notice that the Social Security Administration was unable to match the worker's social security number to the worker's name provided by the employer. As a result, the 2

4 employee was not getting proper credit for the withheld social security and Medicare taxes or the employer's payroll payments to the social security and Medicare trust funds deposited in the employee's name under the employee-provided social security number. OSC has published a list of "dos" and "don'ts" and questions and answers for employers as part of the Obama Administration's decision to resume sending "no match" letters to employers. The guidances are included in the appendix. The guidances are not remarkable for the content as much as for what they do not contain. The guidelines do not provide a "safe harbor" whereby an employer can tell an employee that the employee must provide a valid social security number within a specified period or lose his or her employment. The guidelines recommend that the employer notify the employee of the "no match" between the employee-provided social security number and the employee's name and assist the employee in resolving the error (e.g., by correcting the social security number or the spelling of the employee's name). The employer must give the employee an undefined "reasonable" amount of time to correct the problem, but the guidance does not state what that "reasonable" amount of time is. The guidelines do state that in the E-Verify program context, the Social Security Administration has the ability to put a "tentative nonconfirmation" into continuance for up to 120 days, suggesting that at least this amount of time could be reasonable. In addition, according to the guidance, an employer may not terminate an employee's employment based on a "no match" letter alone, must not ask the employee to fill out a new I-9 form, must not ask for proof of the employee's legal presence in the country in response to a "no match" letter, and must treat all employees the same with respect to "no match" letters. Treating all employees who are issued "no match" letters the same is essential to avoid discrimination claims, which present the larger risk for most employers. In response to a "no match" letter, it is recommended that employers prepare one standard form letter to give to every employee for whom the Social Security Administration sends a "no match" letter. That letter should provide a timeline, erring on the side of providing too much time, for the employee to provide his or her correct social security number and name to the Social Security Administration. The standard time frame should not be less than 120 days and could be six months or longer. The employer may wish to send out the standard letter and then a follow-up letter in 120 days reminding the employee that the error must be corrected within six months of the original "no match" letter. The employer should make sure to keep copies of the letters sent to the employee. If, as a result of the inquiry into the matter with the employee, the employee voluntarily admits that he or she is not authorized to work, then the employer would be on notice of that fact and would need to immediately terminate the employee. But until the employer has more than a no-match letter, it should not take adverse action. So if the employee does not correct the problem in six months, or does not provide any updates, the employer should not terminate the employee. The employer could, but is not required to, tell each employee who is unable to cure the problem within the six-month time frame that the employer will be sending a letter to ICE at the end of an additional 60-day period if the employee cannot solve the problem. If the employee is in the country legally, the employee and ICE will likely ignore that letter. If the employee is in the country illegally, the employee may take care of the problem by quitting 3

5 and seeking alternative employment, thus avoiding the risk of employer liability for employing undocumented workers. Again, this is not a required action. And if an employer elects to take this action, it must be consistent in doing it with all employees who fail to cure the problem within the time frame given. III. E-VERIFY. E-Verify is an Internet-based system operated by DHS, U.S. Citizenship and Immigration Services, that allows employers to verify the employment eligibility of their employees, regardless of citizenship. Based on the information provided by an employee on his or her Form I-9, E-Verify checks this information electronically against records contained in DHS and Social Security Administration databases. Using E-Verify creates a rebuttable presumption that the employer has not knowingly hired an authorized alien. Currently, E-Verify is mandatory only for employers that have contracts with the federal government or are located in select states (not Oregon or Washington). Earlier this year, however, the United States Supreme Court in Chamber of Commerce v. Whiting upheld the legality of the Arizona statute that requires employers in Arizona to use E-Verify. It is possible that this will lead to more states' passing laws to require the use of E-Verify. Because the program imposes stringent procedural rules on a company's work authorization verification process, companies interested in voluntarily using E-Verify should consult with an immigration or employment attorney before enrolling. Employers also need to be careful in the use of E-Verify. OSC has put a special emphasis on working to address discriminatory uses of E-Verify. Attached in the appendix is a list of E-Verify employer do's and don'ts published by OSC. 4

6 Name and Social Security Number (SSN) No-Matches Information for Employers DO: 1. Recognize that name/ssn no-matches can result because of simple administrative errors. 2. Check the reported no-match information against your personnel records. 3. Inform the employee of the no-match notice. 4. Ask the employee to confirm his/her name/ssn reflected in your personnel records. 5. Advise the employee to contact the Social Security Administration (SSA) to correct and/or update his or her SSA records. 6. Give the employee a reasonable period of time to address a reported no-match with the local SSA office. 7. Follow the same procedures for all employees regardless of citizenship status or national origin. 8. Periodically meet with or otherwise contact the employee to learn and document the status of the employee s efforts to address and resolve the no-match. 9. Review any document the employee chooses to offer showing resolution of the nomatch. 10. Submit any employer or employee corrections to the SSA. DON T: 1. Assume the no-match conveys information regarding the employee s immigration status or actual work authority. 2. Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee. 3. Attempt to immediately reverify the employee s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice. 4. Follow different procedures for different classes of employees based on national origin or citizenship status. 5. Require the employee to produce specific I-9 documents to address the no-match. 6. Require the employee to provide a written report of SSA verification (as it may not always be obtainable). For more information on the anti-discrimination provision of the Immigration and Nationality Act, call OSC through its employer telephone hotline or visit OSC s Website: Employers: (TDD: ) Website:

7 E-Verify Employer DOs and DON Ts (Revised 03/21/11) DO Use program in a non-discriminatory manner, without regard to the national origin or citizenship status of your employees Use program for new employees after they have completed the I-9 Form Promptly provide and review with the employee the notice of tentative nonconfirmation Promptly provide the referral notice from the Social Security Administration (SSA) or Department of Homeland Security (DHS) to the employee who chooses to contest a tentative nonconfirmation Allow an employee who is contesting a tentative nonconfirmation to continue to work during that period Check E-Verify daily for updates in connection with the tentative nonconfirmation Contact E-Verify if you believe an employee has received a final nonconfirmation in error Display the required E-Verify participation poster (available from E-Verify) and the required antidiscrimination poster issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) Accept any Form I-9 List B document with a photo from an employee who chooses to provide a List B document Safeguard the password used to access the E-Verify program in order to ensure the privacy of employees personal information Delay running an E-Verify query for an employee who has not yet been issued a Social Security number until the Social Security number is issued Allow an employee who has not been issued a Social Security number to work throughout the period that the employee is waiting for his or her Social Security number to be issued PLEASE SEE BACK FOR E-VERIFY DON TS For more information, call the OSC Employer Hotline ; TDD for the hearing impaired:

8 E-Verify Employer DOs and DON Ts (Revised 03/21/11) DON T Use program to verify any employee hired on or before November 6, 1986 Use program to verify current employees, unless permitted as a federal contractor Use program for an existing employee previously verified through E-Verify at the time of hire, even as a federal contractor Use program selectively based on a suspicion that an employee may not be authorized to work in the U.S. or based on national origin Use program to pre-screen employment applicants unless you are a State Workforce Agency Influence or coerce an employee s decision whether to contest a tentative nonconfirmation Terminate or take adverse action against an employee who is contesting a tentative nonconfirmation, including denying or reducing scheduled hours, delaying or preventing training, mistreating the employee, requiring the employee to work longer hours, requiring the employee to work in poorer conditions, refusing to assign the employee to work on a federal contract or other job, or subjecting the employee to any assumption that s/he is unauthorized to work during this period, unless and until receiving a final nonconfirmation or no show response Ask an employee to obtain a printout or other written verification from SSA or DHS when referring that employee to either agency Ask an employee to provide additional documentation of his or her employment eligibility after obtaining a tentative nonconfirmation for that employee Request specific documents in order to activate E-Verify s photo tool feature Run an E-Verify query for an employee who is waiting for his or her Social Security number to be issued until the employee is issued a Social Security number Require an employee to use E-Verify Self Check or present any E-Verify Self Check documentation For more information, call the OSC Employer Hotline ; TDD for the hearing impaired: