Employer Challenges in a Changing Landscape

By Joe Sigg, Arizona Farm Bureau
 
EMPLOYER SANCTIONS: AN UPDATE ON FEDERAL LEVEL CHANGES
 
Illegal immigration is one of the major issues of our day – the consequences and costs are well known and extensively debated. The problems have been years in the making and it will take years of commitment and resources to solve them.
 
Increased efforts are being made at the border and federal officials are gearing up for increased interior and workplace enforcement, driven by evidence-based complaints.
Though different views exist as to the adequacy of these steps, these processes are moving forward to match the demands of employers, the public and our security needs.
 
At the same time, the Arizona business community wishes to be clear on several points: Labor shortages are an increasing problem for many employers – in some cases it is the overriding issue. Additional regulatory burdens on the workplace must be reasonable and reliable. Arizona employers desire a legal and reliable labor supply as they have the burden of investment. Insuring a desirable result is largely a federal matter, as the state cannot fix our system of fraudulent documents, reliable means of verification and our broken system of visas. Moreover ad hoc solutions by individual states create a patchwork of regulation.
 
Since 1986, employers must request certain presentations of documents and carefully maintain I-9 records. There has been little change in this process.
 
However, a significant change is pending by a soon-to-be-published rule by Homeland Security. This rule will expand the concept of “constructive knowledge,” i.e. when an employer has knowingly hired and has under employ those who are not “work authorized” in this country. This is a major shift in policy:
 
 
·        When presented by evidence of a social security mis-match letter, the issue must be rectified in a manner satisfactory to the federal government within 60 days. If not, the employee must be discharged; otherwise the employer may be considered to have constructive knowledge they have employed a party or parties not work authorized and face federal sanctions.
 
·        Previously, adverse action against employees in this situation was not sanctioned, and in fact, employers could wander into legal problems if they did.
 
·        The employer must retain appropriate records of these proceedings. If employers re-employ those with unanswered mismatches, they face the charge of constructive knowledge and can be sanctioned.
 
·        Employers who use labor contractors will need to increase their vigilance. If they “know” their labor contractors are evading federal immigration law, employers may be guilty of having constructive knowledge.
 
·        How all of this will work is unclear, but this new policy will increase regulatory burdens on employers and significantly elevates their participation in workplace enforcement.
 
·        One might ask why the lack of clarity is a burden. It is because employers must set up internal processes and controls based upon their understanding of compliance with federal law. Under estimation of what an employer should do will create guilt under constructive knowledge. Over playing the situation will create legal liability for the employer in the form of discrimination suits or action by the federal justice system.
 
The impacts of these solutions are not an overnight reality. However, as Arizona considers additional employer sanctions, it should be with knowledge both interior enforcement and new workplace rules by the federal government are changing.
 
Lastly, it is fully anticipated that future solutions by Congress will include some mandatory use of employer identification systems, there have been several proposals along this line, but viable and reliable systems are not yet in place.
 
For more information contact Joe Sigg via email at joesigg@azfb.org.
 
 
EMPLOYER VERIFICATION SYSTEMS: WHY THE “BASIC PILOT” IS NO MORE THAN ITS NAME IMPLIES
 
References to employment verification systems are often used incorrectly. At present, there is only one legal system in this country to determine work authorization status, i.e. the Basic Pilot contract. This system is deployed under the Systematic Alien Verification for Entitlements (SAVE) program. The Basic Pilot Program is a written agreement between each employer, the Department of Homeland Security and the Social Security Administration.
 
Under the contract, the Basic Pilot Program must be used for all hires. It cannot be used to verify work authorization status for an employer’s current workforce nor can it be used in pre-hiring decisions. It can only be used to check status immediately after hiring, there are specified time periods, and the employer is required to then discharge the employee if work authorization status is not confirmed. At various times the government has said they reserve the right to not enter into a contract, and like all contracts it can be severed.
 
As of August 2006, Homeland Security reported 10,000 employers or .14% of total U.S. employers under the basic contract. There are more than 120,000 employers in Arizona. A future Congress is likely to make mandatory some sort of employer verification process, but it may not be the basic pilot.
 
At present, Social Security Number Verification System (SSNVS), a separate program, is not to be used to take adverse action against an employee. Its only purpose is to clean up social security records.
 
In addition to uncertainties as to capacity, the basic pilot has reliability, accuracy and discriminatory problems. While many users have reported satisfaction, those percentages do not break down the labor pool accessed. Homeland Security has testified that its accuracy declines perceptibly when moving from native borne labor pools to the naturalized citizen to those here on immigrant visas.
 
Homeland Security’s own statement in the August 2006 issue of USCIS TODAY, as to the state of the Basic Pilot Program follows. “Although a likely model for a future mandatory national Employment Verification Program, the current Basic Pilot Program was designed as a relatively small scale operation and related proposals currently before Congress are much more than the simple expansion of the Basic Pilot. It will take additional time, considerable funding, a new fee, structure, and significant manpower to design the necessary systems, electronic connections, and inter-agency links required under a comprehensive Employment Verification Program. In addition, concerns over civil liberties and privacy issues hamper proposals to establish a comprehensive employee database that includes biometric information."