Meat + Poultry - October 2007 - 143

LABOR

Plenty at stake
New ICE reg ups the ante for employing
undocumented workers
By Richard Alaniz
meatpoultry@sosland.com

A

few months ago, this column
addressed the December 2006
raid on six Swift plants by federal agents and the resultant class-action lawsuit alleging that the company
conspired to routinely hire undocumented workers. In that column, we
recommended employers take actions
that show "good faith," including I-9
audits, participation in secondary verification programs and proper training of hiring personnel on I-9 form
procedures.
On Aug. 10, 2007, the Immigration
and Customs Enforcement Agency of
the Department of Homeland Security
announced its newest regulation had
been finalized. Effective Sept. 14, the
regulation makes noncompliance even
more perilous - by upping the legal
standard for "constructive knowledge"
- but it also makes the process simpler
by providing a safe harbor and clarifying the actions employers should take
upon receipt of a "No-Match" letter.
Every year, the Social Security Administration informs thousands of employers via a "No-Match" letter that
certain employee's names and corresponding Social Security numbers provided on Forms W-2 do no match SSA's
records. Under the new ICE regulation,
referred to as "Safe-Harbor Procedures
for Employers who Receive a No-Match
Letter," when an employee is found to
lack work authorization the employer
will be deemed to have constructive
knowledge of the employee's unauthorized status if the employer fails to
take reasonable steps after receiving a
no-match letter from SSA or "Notice of
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Suspect Documents" from DHS.
An employer deemed to have constructive knowledge could be subject
to fi nes of up to $10,000 or criminal
penalties.

Safe-harbor provision
The good news is that the regulation
includes a "safe harbor," which allows
employers to act and resolve discrepancies within 93 days of receipt of official
notification from a No-Match letter (or
DHS response to an I-9 completion,

"An employer deemed
to have constructive
knowledge could be
subject to fines of up
to $10,000 or criminal
penalties."
verification and/or audit). Proper use
of the safe harbor provision avoids the
risk of being found to have constructive knowledge of an employee's unauthorized status. To take advantage,
an employer must:
* Audit its own records to determine
if it has committed a typographical,
transcription or similar error
* Contact the employee and request
confirmation that the employee's information is correct
* Ask the employee to pursue the matter himself with the SSA or DHS
* Inform the SSA errors exist and verify
that they have been corrected
If the issue is not corrected within
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90 days of receipt of the No-Match letter, the regulations also describe another procedure that employers must take
to verify the employee's identity and
work eligibility. This new procedure
requires the employer and employee
to, within 93 days from receipt of the
No-Match letter, complete a new Form
I-9 as if the employee were a new hire,
with the employer not accepting any
document that contains a disputed Social Security or alien number and also
requiring a photo ID.

Take action
While the new safe-harbor provision
is useful, we recommend employers
act to avoid receiving No-Match letters by taking proactive steps, such
as auditing I-9 forms, participating in
secondary verification measures such
as the Social Security Number Verification System (SSNVS), implementing
a protocol for mismatches, training
staff on management of I-9 firms and
drafting handbook policies requiring
proper documentation. These protocols should not only help avoid the issue altogether, but also avoid the risk
of having "constructive knowledge"
and show good faith to the agencies
involved.
Richard Alaniz is senior partner at Alaniz and
Schraeder, a national labor and employment firm
based in Houston. He has been at the forefront of
labor and employment law for over 30 years. Legal
topics provide general information only, not specific
legal advice. Individual circumstances may limit or
modify this information.
We would like to hear from you - to comment on
this story or to request reprints, contact us by
e-mail at: meatpoultry@sosland.com.
http://www.MEATPOULTRY.com
Meat + Poultry - October 2007

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