Immigration, Service Labor & Politics

by Chris Arlen on August 6, 2009

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stoughton_tornadoU.S. immigration laws, enforcement and politics are tied up in an overwhelmingly complex knot.

Immigration touches all areas of society: the economy, publicly funded social systems, and universal human rights.

At a business level, immigration confuses and frightens workers and employers alike.

For low-wage service industries in particular, immigration is the tornado in the distance, a quickening wind now with an unknown future impact.

Here are a few observations for facility service contractors regarding immigration. (This is not legal advice, seek experienced counsel for that).

Customers & Business Competition

Contractors who play by the rules feel they lose business to shady contractors who break the law and sell at lower pricing.

But what if customers knowingly choose contractors who hire unauthorized alien workers and don’t pay taxes or overtime?

Aren’t they complicit with the bad contractors? Is there no justice for good contractors? Read on.

ICE gets Wal-Mart

Wal-Mart’s business is based on selling at the lowest prices. Unfortunately, it has a history of buying the lowest price too, without looking any further. ICE (Immigrations and Customs Enforcement) has enhanced Wal-Mart’s vision .

In 2001 ICE arrested 100 illegal immigrant janitors at Wal-Mart stores in 4 states.

In October 2003 ICE’s “Operation Rollback” arrested an additional 245 at 60 Wal-Mart stores in 21 states.

The 12 contractors that employed janitors for Wal-Mart plead guilty to criminal charges and paid $4 million to the government.

Wal-Mart, to end the ICE investigations,  paid a $11.2 million settlement to the Justice Department.

The story continued. Some of the illegal immigrant janitors arrested at Wal-Mart, filed a class action law suit against Wal-Mart claiming violation of the RICO Act. This long drawn out battle was started by Wal-Mart contractors paying flat amounts between $350-$500 per week for 7 days per week, 60+ hours per week, no overtime, no taxes and no time off.

These contractors were criminal, but Wal-Mart chose repeatedly not to know what they should have known.

Check out the many other ICE enforcement stories on their web site under NEWS, then select WORKSITE for the topic. Interesting reading.

FOR CONTRACTORS THIS MEANS:

  • Know your current customers very well – they may be ICE targets, and you with them
  • Do your homework on prospective customers – know who you’re committing to
  • Always be rigorous in your I-9 practices
  • Consider enrolling in IMAGE (ICE Mutual Agreement Between Government and Employers) to lessen the likelihood of I-9 violations

Immigration Enforcement Increases

In the last several years I-9 investigations are increasing. ICE sent out 652 Notices of Inspection (NOIs) on July 1, 2009, compared to 503 in all of 2008.

FOR CONTRACTORS THIS MEANS:

  • A more level playing field for I-9 compliant contractors
  • An increase in the possibility you’ll be investigated – but likely still a low probability
  • Always be rigorous in your I-9 practices
  • Consider enrolling in IMAGE

Some Customers Continue to Hire Non-compliant I-9 Contractors

This was the story with Wal-Mart, who has now converted to become a very rigorous vetter of their contractors and subcontractors.

However, there will always be customers who work outside the law’s intent and letter.

FOR CONTRACTORS THIS MEANS:

  • Avoid those customers like the plague, because they are

Authorized Workers are Protected

When workers are I-9 eligible and verified for employment they gain the protection of U.S. labor laws.

Compliant contractors want all employers to comply with minimum wages, taxes, and over time pay laws.

FOR CONTRACTORS THIS MEANS:

  • A more level playing field for customer pricing
  • An employment market freeing you to spend your time more productively

Contractors in the Middle of Changing Compliance

Currently, I-9 compliance doesn’t require verifying the authenticity of individual’s identity document(s).

According to U.S. Citizenship and Immigration Services

“All U.S. employers must complete and retain a Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual and record the document information on the Form I-9.”

Does the following phrase seem open to interpretation?

“…the employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual…”

It doesn’t say check applicants name and social security numbers with the Social Security Administration.

But that’s one way to resolve the issue – by using E-Verify. It’s the Department of Homeland Security (DHS) and the Social Security Administration (SSA) free online service to match newly hired employees’ names with Social Security numbers.

Heads up, E-Verify is not foolproof. There have been 0.3% of 6.4 million queries in 2009 that have resulted in “No-match”, meaning the names and numbers didn’t match, but later proved incorrect (this meant 19,200 people had delays in getting hired).

As a result, employers get “no-match” letters. And the DHS/SSA are continuing to refine the legal definition and intrepretation of the “no-match” letter program.

Their instructions on what an employer should do, and when, were challenged in 2007 in the U.S. District Court of Northern California.

As a result, it’s not always clear which protocol contractors/employers should follow.

FOR CONTRACTORS THIS MEANS:

  • Confer with experienced counsel
  • Follow the employer safe harbor procedures announced before the no-match rule was enjoined: (1) within 30 days of receiving a no-match letter, check internal records; (2) within 90 days, ask the employee to go to the SSA or the U.S. Citizenship and Immigration Services to resolve the issue; and (3) within 93 days, complete a new I-9 form (use identification documents other than those that initially created the mismatch.)

But What About?

Here are several questions I’d like to hear from you about, anonymously if you’d like:

  • What about your long-term employees that were hired before I-9 had gotten stringent –> Do you go back & E-Verify their SS#s?
  • What about accounts where you have lots of employees who may or may not be authorized aliens –> Do you go back & E-Verify their SS#s?
  • How would you hire new, eligible employees fast enough to backfill lost employees to I-9 investigations?

~~~~~~~~~~~
Chris Arlen,
President, Revenue-IQ

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