Dealing with Unauthorised Alien Employee Accusations

ATLANTA — Although regulations in the US telling employers how to respond to charges of hiring unauthorized workers have been postponed, poultry industry employers should be studying the guidelines to prepare for the release of a revised set of rules regarding "no-match" letters, according to a labour law attorney.
calendar icon 1 February 2008
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New rules that would have changed what employers were required to do after receiving a no-match letter from the Social Security Administration were to take effect last September. The letters warn employers about employees who might be unautorised aliens.

"We’ve got to be ready to handle an onslaught of no-match letters come this summer. Virtually all of us in the industry will probably get letters."
Jim Wimberly of Wimberly, Lawson & Steckel

The regulations outlined the steps employers could take to gain a "safe harbor" or immunity from charges of having "constructive knowledge" of hiring an unauthorised alien, said Jim Wimberly of Wimberly, Lawson & Steckel, an Atlanta Georgia law firm. He spoke during an educational session at the International Poultry Expo, sponsored by the U.S. Poultry & Egg Association.

Implementation of these regulations by the SSA and the Department of Homeland Security was blocked by a preliminary injunction last fall, and no-match letters are currently not being sent. However, revised regulations may be released this spring, Mr Wimberly said. Thousands of letters soon could be in the mail, and employers will be expected to take action if they receive one.

According to Mr Wimberly, this is not reassuring given that the SSA makes 17 million mistakes a year involving mismatched information.

"You can understand the concept that if an employer were to fire each employee just on the fact that the Social Security Administration indicated that the person’s name and number didn’t match, many innocent persons would be terminated," he said.

The federal government has also tried to enforce immigration laws through raids, audits, and criminal prosecutions, and will probably continue to use those approaches, but the no-match letters are likely to be an important component of their strategy, Mr Wimberly said.

While no one yet knows what the new regulations and no-match letters will contain, employers should prepare by studying the requirements set out in the rules that were put on hold following the court challenge.

"We’ve got to be ready to handle an onslaught of no-match letters come this summer. Virtually all of us in the industry will probably get letters," Mr Wimberly added.

He offered suggestions for responding to an allegation that an unauthorized worker is on the payroll. The employer should first decide if the information is credible, based on the source. A letter from a government agency such as the SSA or Immigration and Customs Enforcement should be credible, but a rumor, phone call or anonymous letter is more suspicious and may not even warrant a response. The employer should insist that any allegation be in writing and signed.

If hard evidence is provided, the employer should meet with the employee and discuss the allegation. If the employee admits being illegal, termination is usually warranted. But if the employee denies illegal status and has a rational explanation for the discrepancy, it is often best to retain him or her and document the results of the investigation.

Mr Wimberly also offered poultry industry employers advice on how to avoid problems with ICE. The primary goal is to avoid becoming a target by attracting negative publicity. If someone in your company is caught selling jobs or engaging in some other criminal activity, ICE will hear about it and launch an in-depth investigation.
  • Companies should train their personnel on proper hiring procedures and record keeping. Arrangements with contractors could be a source of problems, so the company should insert language in their contracts stating that they will comply with I-9 rules and refer only lawful workers to you.
  • Pay close attention to the person who completes the I-9 employment eligibility verification forms for your company. That individual will be a target in the event of an ICE investigation.
Mr Wimberly also recommended that employers be cautious about joining government programs, such as E-Verify.

Participating in E-Verify will not protect a firm from investigations or raids, although it could shield the company from having to make substantial layoffs over a short period, he said.

He also reminded employers that when current immigration laws were passed in 1986, there were two purposes: one was to forbid the hiring of illegal workers, while the other was to prohibit discrimination against foreign nationals. That second portion of the law is often forgotten, but it remains in effect, is still enforced, and could land a company in as much trouble as violating the portion of the law dealing with hiring practices.

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