Update on immigration issues for employers
1. E-Verify
E-Verify, which had been scheduled to expire on Sept. 30, 2009, continues to be funded by Congress on a month-to-month basis. There seems to be a growing consensus in Congress to extend E-Verify in its current form for three years. As of this writing, no long-term resolution pertaining to the funding of E-Verify has been passed, as Congress continues to debate various immigration issues.
Beginning Sept. 8, 2009, certain federal contractors and subcontractors were required to use E-Verify to confirm the work authorization of all new hires and existing employees who are assigned to work on federal contracts. In general, E-Verify applies to all federal prime contractors regardless of their size holding a contract to be performed in the U. S. with a period of performance longer than 120 days and a value over $100,000. The obligation also extends to subcontractors with service or construction subcontracts valued over $3,000. Supply and service contracts not subject to the E-Verify requirement include those for commercially available off the shelf items, such as food and agricultural products.
2. Rescission of “No-Match” Regulation
On Oct. 7, 2009, the Department of Homeland Security (DHS) formally rescinded the proposed federal “no-match” regulation. The rescission leaves employers with no direct federal guidance on how to handle their receipt of Social Security “no-match” letters or related letters pertaining to individual employees, such as “Request for Employer Information” letters or “Request for Employee Information” letters.
DHS, in its reply to the public comments on the proposed regulation, stated that: “Receipt of a no-match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘constructive knowledge.’ A reasonable employer would be prudent, upon receipt of a no-match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information. Employers would also be prudent to allow employees a reasonable period of time to resolve the no-match with SSA.”
In response to a public comment that some employers are wrongly implementing the 2007 and 2008 final rules, even though these rules have now been rescinded, and that employees who receive no-match letters are being discriminated against, DHS stated that: “Employers should not use no-match letters, without more, as a basis for firing employees without resolution of the mis-match, and DHS has never countenanced such a practice.”
DHS also stated that: “Employers remain liable where the totality of the circumstances establishes constructive knowledge that the employer knowingly hired or continued to employ unauthorized workers. An employer’s receipt of a no-match letter and the nature of the employer’s response to the letter are only two factors that may be considered in determining the totality of the circumstances.”
3. ICE I-9 Audits
On July 1st, 2009, Immigration and Customs Enforcement (ICE) issued 652 Notice of Inspection (NOIs) letters to companies nationwide — which is more than ICE issued throughout all of last fiscal year when it only sent out 503 similar notices. The notices alerted businesses that ICE wanted to inspect their employment records to determine whether or not they were complying with employment eligibility verification laws and regulations. Those chosen for the audits were not randomly selected, but were based on ICE suspicions of supposed compliance issues. The I-9 forms for current and former employees were requested, along with payroll lists, Social Security letters and responses and related items. Some of these employers began getting written responses from the ICE audits a couple of months later, in many cases outlining what steps the employer should take in correcting or re-accomplishing their I-9 forms, and in some cases requiring the employers to take investigatory steps to review the legal status of certain named employees. This type of process is expected to be a prime ICE enforcement method for the future, and ICE has suggested that criminal penalties and civil fines are going to be a large part of its strategy going forward. Although ICE does not directly state it will no longer conduct workplace raids, it does state that workplace raids will not be a point of emphasis in the future.
4. Failure to include “No Rehire” provisions in settlement agreement can be costly
Usually, when an employer settles a case, it believes that its problems with the plaintiff are over and done with. The employer in the recent case of Docken v. State of Minnesota learned otherwise. The employee quit her job after the employer refused to approve FMLA leave for her to go to Mexico to help her ill father. She then sued the employer, alleging she had been denied the right to FMLA leave to care for a parent with a serious health condition. The employer apparently realized its mistake and settled the case with the employee. Later, the former employee reapplied, but was not hired. She sued for retaliation, alleging that she had been blackballed because she had sued the employer previously. The court stated that turning down the former employee’s application could constitute retaliation because the prior settlement had no provision that the employee would not reapply for future employment.
It is typically lawful in a settlement agreement for an employer to request a provision that the employee will not apply in the future. Employers who do not include such provisions open themselves up to claims like that in the current case. Employers should be aware that in a workers’ compensation settlement, the issue can be somewhat more difficult, because some workers’ compensation systems do not allow settlement provisions unrelated to the workers’ compensation claim. However, employers can manage that issue by using two settlement agreements signed at the same time.
