Legal Perspective

Employers at the Center of Immigration Enforcement
By Nancy B. Vollertsen and John Chanin | January 24, 2007
The issue of undocumented workers may seem remote to the biodiesel industry. However, recent raids by U.S. Immigration and Customs Enforcement (ICE) in six states, coupled with the Department of Homeland Security's (DHS) proposed new regulations on employment verification, reflect a significant shift toward increasing employer responsibility regarding undocumented workers. Given the prevalence of undocumented workers, this issue deserves attention by all employers.

Employers are now a key target in government efforts to catch undocumented workers. Colorado-based Swift & Company, the world's second-largest processor of fresh beef and pork, was recently the highly publicized target of enforcement actions by the ICE and DHS to uncover identity theft, as well as illegal workers.

At the same time, employers are now more at risk for discrimination claims by foreign workers, who have been the subjects of investigations to verify identity. Employers must ensure that workers are legitimately eligible to work in the United States, without violating the workers' legal rights.

How Can Employers Protect Themselves?
Although employers can never eliminate the risk of becoming an enforcement target, they can substantially reduce that risk by adopting the 10 Best Hiring Practices recently promulgated by the ICE. Perhaps more importantly, the ICE has indicated that if minor or isolated violations occur, it will favorably consider employers who have adopted these policies and procedures in assessing civil fines or criminal sanctions. Some of these hiring practices are:

--Use the Basic Pilot Employment Verification Program for all hiring. This is a voluntary program that allows employers to check the legal status of perspective employees. More information about the program is available on the ICE Web site at www.ice.gov.

--Establish a self-reporting procedure for reporting to the ICE any violations or discovered deficiencies.

--Establish a protocol for responding to "no-match" letters received by the Social Security Administration (SSA)-a letter informing the employer that a worker's Social Security number doesn't match the worker's tax or employment eligibility documents. Of the 250 million wage reports received by the SSA each year, an estimated 10 percent belong to employees whose names and Social Security numbers don't match. Upon receiving a no-match letter, the employer must not fire the employee. Instead, the employer should first review its own records for errors.

--Establish a tip line for employees to report activity relating to the employment of unauthorized aliens, and a protocol for responding to employee tips.

--Establish and maintain safeguards against use of the verification process for unlawful discrimination.

--Establish a program for assessing the company's contractors/subcontractors' adherence to the "best practices" guidelines.

Of course, employers should already have most of these policies and procedures in place. Federal law requires the completion and retention of employee eligibility verification forms for each new hire, and some states now require a written affirmation that the employer hasn't knowingly hired an illegal worker. With the new emphasis on criminal prosecutions and work-site enforcement, however, there has never been a higher premium on voluntary compliance. Employers would be well-served to redouble their efforts in this area.

Nancy B. Vollertsen counsels employers on issues of employment law and related matters. She can be reached at (612) 371-3540. John Chanin has extensive experience with complex criminal and civil litigation. He can be reached at (303) 454-0512. For more information, visit www.lindquist.com.
 
 
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