The following is an article that recently appeared in the BNA Bulletin to Management with some imbedded comments from A Plus Benefits.

As E-Verify, No-Match Rules, I-9s Evolve, Employers Need to Stay on Top of Issues

While awaiting government action on various immigration issues, employers must continue to staff their workplaces, avoid the dramatically increased fines for hiring illegal immigrants, and stay on the right side of the Immigration Reform and Control Act’s anti-discrimination provision.While awaiting government action on various immigration issues, employers must continue to staff their workplaces, avoid the dramatically increased fines for hiring illegal immigrants, and stay on the right side of the Immigration Reform and Control Act’s anti-discrimination provision.Experts told BNA that while it is not an easy situation, especially given a dearth of skilled workers in some sectors, there are ways to cope, including:

• being scrupulous about I-9 forms; (A Plus has announced a new initiative for I-9s)
• if the company is using E-Verify, employing it correctly; and (A Plus has announced that it can now act as a third party agent for its clients, a no cost benefit)
• ensuring that staff are trained in race and national-origin anti-discrimination policies. (Every A Plus HR Advisor can provide this training)

Eleanor Pelta, a partner in Morgan Lewis’s Labor and Employment Practice in Washington, D.C., told BNA that when it comes to hiring foreign-born workers, “employers are still between a rock and a hard place.”

“I don’t think there’s any employer immune to an [Immigration and Customs Enforcement] action, and the fines have just been adjusted upward for inflation,” she warned.

Changes to I-9s, E-Verify
The I-9 process is essentially the same as it has been—companies are required to complete these work authorization forms for employees and check their documentation the first day on the job. But the forms now feature an even more prominent “Anti-Discrimination Notice”, and the Department of Homeland Security’s Citizenship and Immigration Services is expected shortly to issue a proposed final rule reducing the number of documents employers can accept.

Increasing the stakes, under a joint rule from DHS and the Department of Justice, a 25 percent increase in fines took effect March 27 for knowingly employing a person not authorized to work in the United States.

Meanwhile, DHS is working hard to turbo-charge the Social Security Administration’s annual “no-match” letters. The letters have previously been used for informational purposes only—informing employers when 10 percent or more of their workforces show data discrepancies. However, under a proposal issued last year, DHS expanded what is considered “constructive knowledge” that an employee has provided a false Social Security number and stated that employer failure to respond to no-match letters can be evidence used in civil and criminal actions brought by the agency.

In the midst of legal challenges from a coalition of labor unions, business groups, and immigrant rights groups that blocked implementation of the rule, DHS issued a related supplemental proposed rule March 21.

In addition, while DHS’s E-Verify employment verification system is currently voluntary on a national basis, agency Secretary Michael Chertoff has promised a proposed rule soon making it mandatory for some 200,000 federal government contractors, and several states are already requiring some or all employers to use it.

“It seems to be the trend,” said Brent T. Huddleston, attorney with the Law Offices of Richard A. Gump Jr. in Dallas. “We expect it to continue, and in many cases we recommend [using E-Verify now],” he said.

Review, Training Recommended
Pelta warned that an employer “can be fined even if you have an entire population of legal workers if you’re not doing the I-9s correctly—it’s called ‘paper work violations.’ ” Keeping accurate and timely I-9s has never been more important, she said.

“You want to really have a system that you can trust,” she advised, including a written protocol accessible to all human resources staff, and see to it that everyone receives training. She suggests a complete review at least once a year to identify recurring mistakes and target areas for further training.

“We’re seeing this come up in a lot of interesting places,” Pelta said of immigration-related concerns.

For example, she said, “we’re finding that companies targeting acquisitions are asking us to come in and take a look at immigration compliance—they don’t want to acquire possible violations or find out that 50 percent of the employees are not authorized to work.”

Huddleston recommends that if possible, one employee at a company—often an HR person—should serve as the I-9 manager.

Having one person in charge leads to fewer mistakes and inconsistencies because that person tends to take ownership of the process and, as the in-house specialist, can become better versed in the requirements of the system, he said. Huddleston added that companies should avoid the temptation to have whoever is available on a new hire’s first day take care of it.

He also suggests periodic outside audits of the company’s system, so that problems can be caught before they become liability issues. One of the biggest mistakes he sees is companies’ resistance to this idea, Huddleston said.
(Beginning July 2008 A Plus HR Advisors will begin conducting I-9 audits and training to confirm that each and every client is submitting correct and complete form I-9s)

“Very rarely” would a company not benefit from such a review, he said, adding that companies of all sizes and reputations generally have room for improvement in their I-9 systems.

E-Verify Safe Harbor of Sorts
Meanwhile, using E-Verify can help an employer show that it is attempting to obey the law. Still, the system has been widely criticized, is not foolproof, and could eliminate some legitimate employees, many argue.

The problem with E-Verify, said Pelta, is that “it’s tapping into some very old data bases with high error rates.” According to the Social Security Administration, 7.8 million of its records have errors in them, with 12.7 percent of the mistakes pertaining to U.S. citizens.

“I’m not sure what employers can do about that,” she said. “I think you’re kind of stuck with that unless there is another way to verify a person’s work authorization.”

A potential landmine for employers using E-Verify, Pelta said, is taking adverse employment actions in response to tentative nonconfirmation notices (TNC) and failing to inform employees of their rights under E-Verify. She said such mistakes are avoidable.

It is a matter of getting used to the system and “ being very, very careful,” Pelta said.

According to Interim Findings of the Web-Based Basic Pilot Evaluation, prepared for DHS in December 2006 by Westat of Rockville, Md., foreign-born employees who were ultimately verified for work were 30 times more likely to have gotten a TNC during the process than U.S.-born employees eventually authorized.

Because of the possibility this presents for discrimination against immigrants, there is a precise procedure for using E-Verify, according to DHS. The system is not to be used as a prescreening device and in fact, cannot be consulted until a new hire’s first day.

Secondly, employers are required to inform employees getting a TNC of their right to take steps to correct the record.

Huddleston noted that an employer using E-Verify can be held liable if it knew that an employee was using a false identification—even if the employee checked out OK on E-Verify. “E-Verify doesn’t always protect against ID theft and fake documents,” he said.

Katherine Lotspeich, acting director of the USCIS Verification Division, told BNA that one of the original intents of an electronic verification system was to prevent discrimination against job candidates on the basis of ethnicity.

She said 92 percent of employees are certified nearly instantly using E-Verify and that the error rate has been overstated. “Everyone assumes the other 8 percent are eligible to work, but less than 1 percent of the tentative nonconfirmations are contested,” she said.

HR Discussion:
Our HR Department at A Plus Benefits is expending a lot of effort to stay on top of the developments concerning authorized and unauthorized workers and the various initiatives that are developing in different government departments.

We believe participation in the E-Verify is a wise step for each and every client to ensure that only those authorized to work in the US are hired.

While there are critics of the E-Verify system, there are adequate steps in place for individuals who believe they have been improperly flagged as unauthorized. As the article points out, less than 1% of those who are flagged as unauthorized claim that they are in fact authorized to work in the U.S.

If you have questions about the E-Verify program or any other concerns related to the hiring of authorized individuals, please contact us.

We appreciate your business, we hope our efforts allow you to get back to business.

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