This week’s HR Update offers more information about the continue saga of The Department of Homeland Security’s new rules concerning Social Security Mis-Match Letters and criminal prosecution of businesses who hire illegal workers.

Later this week we will post another HR Update with a subject other than legal/illegal workers and documentation. However, this is an important issue and we will continue to pass on information as it becomes available.

Below is an article that recently appeared on the SHRM (Society for Human Resource Management) web site. The article was written by Allen Smith, J.D., is SHRM’s manager of workplace law content

9/10/07 5:27 PM

Challenged No-Match Rule Followed To Fend Off Criminal Prosecution
By Allen Smith

The Department of Homeland Security (DHS) final rule on Social Security “no-match” letters might be in limbo, but federal raids and criminal prosecutions of employers with illegal immigrants march on.

That’s why Mary Pivec, an attorney with Keller and Heckman in Washington, D.C., recommends that employers at the greatest risk of criminal prosecution for employing illegal immigrants demonstrate good-faith compliance efforts by following the no-match final rule now, despite its legal challenges.

A temporary restraining order prohibits the DHS from enforcing the rule until Oct. 1, 2007. It resulted in the Social Security Administration (SSA) delaying a planned mailing of 140,000 no-match letters.

There’s no guarantee that a permanent restraining order will be issued, though. And even if a permanent restraining order is issued, the DHS isn’t likely to give up without a fight and would appeal, Pivec predicted in an interview with SHRM Online.

Regardless, the temporary restraining order “does not stop criminal investigations,” Pivec emphasized. And the failure to resolve discrepancies between Social Security numbers (SSNs) and employee names might surface as evidence of a criminal scheme.

Criminal Investigations Abound
“If you’re in an industry where the spotlight is on you or historically have a substantial number of no-matches from the SSA, the risk of criminal investigation is substantial,” Pivec cautioned.

“A lot of people have their head in the sand and assume that, as in the old days, there will be a civil case and they will be slapped with fines” if found in violation of immigration laws. “There has not been a civil case in the last five years” against employers, she asserted, saying that the government instead is launching criminal investigations when it believes employers have violated immigration laws. And criminal penalties may, of course, result in not just fines but also time in prison.

Employers in the poultry, food and meat processing; agricultural; and construction industries are at the greatest risk of criminal prosecution because they are heavily dependent on foreign labor, Pivec said.

Yet another raid occurred recently at a poultry processing and packaging facility on Aug. 28, 2007. U.S. Immigration and Customs Enforcement (ICE) executed criminal search warrants at Koch Foods in Fairfield, Ohio, identifying more than 180 employees for questioning and administratively arresting more than 160 for immigration violations, ICE stated in a press release.

Complying with the new rule will be “a headache,” Pivec acknowledged. She expects that large employers that comply with it “may have to hire one or two extra people trained to deal with these issues—not a novice.”

Be Prepared …
Jasmine Majid, an attorney with Crowe & Dunlevy in Oklahoma City and a member of the Society for Human Resource Management Workplace Diversity Special Expertise Panel, agreed that employers should take steps now to comply with the final rule, despite the legal challenges.

Majid told SHRM Online that employers should prepare for no-match letters and:
• Be able to identify no-match letters when they come in.
• Have policies in place to handle no-match letters consistently and expeditiously.
• Contact their immigration and employment lawyers.
• Set up tickler systems containing dates by which employees or they must act.
• Do what the rule says to do when it says to do it—and document each step.

An employer should check its own records during the first 30 days after receiving a no-match letter in order to make any necessary correction of errors and verify corrections with the SSA and/or the DHS. If necessary, an employer then should notify the employee promptly and ask the employee to assist in correction.

Majid cautioned that no adverse employment action should be taken without an employer first talking to its lawyer.

Termination should not be considered before the end of the 90-day period after receiving the no-match letter, unless an employer has actual knowledge before then, said Rebecca Sigmund, an attorney with Powell Goldstein LLP in Atlanta, in a Sept. 6 interview.

Suppose an employer discusses the discrepancy between the SSN and the employee’s name and the worker says, “Yes, that’s not my real number. I’m not authorized to work.” The employer then has actual knowledge and can terminate the employee, she explained.

If the employee does not resolve the discrepancy but presents other documents permitted in the I-9 process, a new I-9 would be filed within three days of the end of the 90 days.

An employer can take proactive steps to ensure that its workforce is lawful, such as calling the SSA at (800) 772-1213 for each new employee and verifying the worker’s SSN, Sigmund noted. An employer that makes this call will need the employer identification number and the employee’s name and birth date in addition to the SSN, she said.

… But Not Too Prepared
Beware of over-documentation, though, Sigmund cautioned, saying employers otherwise risk being sued for discrimination. Employers should not ask employees to come forward with documents from column “A” as well as from columns “B” and “C” from the I-9 form, for example.

Although Majid recommends that employers follow the final rule to limit their potential liability, she is concerned that “employers, worried to death about being prosecuted and fined, may choose, consciously or not, to discriminate against foreign-born or foreign-looking workers out of fear. No good can come of that.”- Allen Smith, J.D., is SHRM’s manager of workplace law content.

It is our hope that this additional information concerning this very timely subject is helpful. We appreciate your business.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

Read Randall’s previous HR Update.