Dairy labor: You willing to do time for hiring undocumented workers?

By Ron Goble

Anthony Raimondo, labor attorney, speaking to a group of dairy producers at recent Dairy Profit Seminars during World Ag Expo in Tulare, Calif., says the one thing he can tell you about immigration is something you already know – it’s a real problem.

“I don’t think there is anyone on either side of the issue, whether it’s an employer, business group, government agency, or labor advocacy group, that thinks this system is working the way it should,” Raimondo declared. “We all know we need some kind of change and reform in immigration. While we may all agree with that, it doesn’t appear that Congress is in any hurry to give us anything. Immigration is such a political hot potato, I haven’t seen any progress made since the first AgJobs Bill introduced during President Bush’s first term in office.”

Raimondo went on to discuss what the producers’ obligations are in the current environment surrounding the immigration issue.

With the attorney on the panel were Central California dairyman Melvin Medeiros, sharing his own story about the drama of immigration issues, and Kul Brar, representing the Department of Homeland Security, who provided the agency’s role and perspective on immigration.

“Be certain you have completed I-9 forms for all new hires, including U.S. citizens,” Raimondo said. “Make sure that all staff who process new hires are trained to properly have people complete the I-9 process.

He suggested that periodically producers should audit their I-9s to make sure they are properly processing new hires. Incomplete or improperly completed I-9 forms will result in exposure to liability.

Complete the forms at the same point in the employment process for all employees – after you have made the decision to hire the person.

Be certain you keep I-9 forms on file for three years after the date of hire or for one year after termination of employment, whichever date is later, he stressed.

 

Immigration compliance protocol

• Have a knowledgeable designated representative in place, who is authorized to meet and talk with ICE or U.S. Department of Labor (DOL) personnel. Make sure that the representative knows when to contact the company’s attorneys and owner.

• Educate your employees to refer ICE or other government inquiries to your designated company representative. All employees must be trained to inform ICE agents that the company has a standard protocol implemented by legal counsel, and that the agents need to wait for the designated person to follow through on that protocol.

• No management employee should submit to an interview or provide documents to the ICE or other government agency without first conferring with your designated company representative.

When ICE shows up: Determine who the investigators are. Ask for a business card.  Make sure they really are with ICE. Contact your attorney immediately.

Find out why the investigators are there.

IS IT A RAID?: Generally requires a search warrant, and no advance notice.

AN I-9 AUDIT?: Requires three days’ advance notice in writing – Even if the audit is part of a Department of Labor drop-in inspection – Always demand 3 days notice before showing anyone the I-9s. No search warrant.

Raimondo stressed to “always stay calm. Be polite no matter how you feel. Losing your temper will only make matters worse. Don’t refuse or delay providing documents you are legally required to provide.”

“Don’t forget you can ask for time to compile the records requested by ICE agents. Don’t allow documents to be removed from your property without making copies, and don’t turn over more documents than the law requires,” he stressed.

“You are not required to keep or produce photocopies of the documents employees presented to establish identity and/or employment eligibility, so don’t do it.

“If, while preparing for the audit, the employer discovers errors on I-9s or missing forms, he should not correct the errors prior to the audit.  Federal regulations allow employers 10 business days after notification of a technical error on the I-9 to correct the error, and most minor technical problems can be corrected during this period. If an I-9 is missing altogether, then the employer should immediately have the employee complete an I-9.

“Never back date an I-9 to the date of hire!

“Know your rights. For example, no one is required to answer any questions. Make sure you consult with your attorney before giving agents access to employees or management, or before allowing any press contacts. Also, you have the right to continue operating your business during the ICE visit.”

 

Immigration law – Employer obligations

It is unlawful for any person or entity to hire (or recruit or refer for a fee) an alien for employment in the United States knowing that the alien is not authorized to work in the United States.

It is also unlawful to continue to employ an alien while knowing that the alien is, or has become, unauthorized for employment.

An employer has an affirmative defense if it complies in good faith with the verification process set forth in the statute, typically referred to as the I-9 process.

“KNOWLEDGE” indicates not only actual knowledge but also “constructive knowledge, which is awareness of certain facts or circumstances that would lead a person exercising reasonable care to know about a certain condition. Constructive knowledge that an employee is not authorized to work includes, but is not limited to, circumstances where an employer fails to complete the I-9 form, has information available to it that would indicate that a person is not authorized to work, or acts with reckless…disregard for the legal consequences of allowing another individual to introduce an unauthorized alien into its work force or to act on its behalf.

Knowledge that an employee is unauthorized may NOT be inferred from an employee’s appearance or accent, NOR may it be inferred from mere suspicions or rumors.

I-9 Compliance

Section 1: MUST be filled out by the employee before performing any work.  The preparer/translator certification must be signed by anyone who assists.

Section 2 (document verification): Must be completed within 3 days of starting work.

Make sure all new hires are provided with a copy of the list of acceptable documents that is on the back of the I-9 form.

Documents must be originals that “reasonably appear genuine on their face.”  If so, they must be accepted.  Employers cannot specify which documents to produce.

 

Document verification

Make sure the employee presents ORIGINAL documents. Copies are not acceptable!

The law does not require you to copy employee documents! If you keep copies, you are giving ICE an opportunity to second guess your judgment on whether the document appeared genuine – except that ICE will be looking at a COPY when you were looking at an original.  Copies are often of poorer quality than originals, and may not look the same. Whoever fills out the I-9 for the employer has to certify that the documents appeared genuine under penalty of perjury, and that is enough.

Employees must produce 1 document from List A, or 1 from List B and 1 from List C. Make sure you know the difference between them, and the purpose for each. List A documents prove identity and authorization to work.  List B documents prove IDENTITY ONLY.  List C documents prove work authorization, but do not show identity.

Errors, typos, and white-out – let your mistakes be seen. There is no reason to make ICE suspicious about what you might have blacked out.

Document abuse: Absent a legitimate reason for requesting additional documents or refusing to honor tendered documents, a discriminatory purpose will likely be inferred.

Reverification: If an employer has information available to it indicating that an employee is not authorized to work, there is a duty to inquire further about the employee’s status, but the employer must be careful to avoid committing an unfair immigration related employment practice. An employer may inquire further by requesting more or additional verification documents without risking charges of document abuse when reliable information arises suggesting that an employee is not authorized to work.  If an employer receives a mismatch notice and the employee used an SSN for List C on the I-9, it should reverify the I-9 without using the questionable SSN.

 

Frequently asked questions

Q: What do I do if I discover an unauthorized worker?

A: If there is information suggesting that an employee is working without authorization, you should reverify their work authorization.  Suspend the employee for three days pending production of acceptable documentation.  You must terminate the employee if he does not produce acceptable documentation.  Remember, if information comes up when following up on a Social Security mismatch that shows that the employee is undocumented, or if the employee admits he or she is undocumented, then the employer must terminate the employee.

“Terminating a good employee is tough, but you have to ask yourself, am I willing to go to prison for that person? That’s what it comes down to,” Raimondo asked.

 

Q: When do I need to reverify employment authorization?

A: You must reverify employment eligibility when an employee’s work authorization expires or when information arises that calls the work authorization into question.  You must reverify employment authorization on Section 3 of the I-9 or by completing a new I-9 (to be attached to the original I-9) no later than the expiration date of the prior work authorization.  You are not required to reverify an expired U.S. passport or Permanent Resident Alien card (Form I-551), which are issued only to lawful permanent residents, and you need not reverify expired List B (identity only) documents.  Temporary evidence of permanent resident status, in the form of an unexpired foreign passport containing a temporary I-551 Alien Documentation Identification and Telecommunication System (ADIT) stamp, must be reverified upon expiration.  List B (identification only) documents do not need to be reverified when they expire. You cannot accept expired documents for the initial hire.

 

Kul Brar, Homeland Security brought seminar attendees copies of the “Handbook For Employers,” a guide to filling out I-9s. Brar had this advice to offer: “If you are given a Social Security card that is typed, remember, they don’t come that way. That’s a big red flag. Ask for original documentation.

“On the website (www.uscis.gov) are copies of updated I-9 forms and information on most every situation and scenario you will run into as an employer. Remember, a person under 18 must have their parents fill out the I-9 for their child.

“I look for the certification process  and the date – having been completed within three days of hire. If you certify their I-9 a week later, it’s not valid and will become a technical error during the audit process. The producer will receive a list of their technical errors and they will have time to correct them. We’re really out here to help educate employers. Most of our audits are mandated through the agency and their goal is to increase the audits up to several thousand a year. Other audits result from complaints from workers or employers.”

Raimondo: “I hate to be the bearer of bad news, but this is California. You guys are farmers and you have a target on your back for just about everything, immigration being just one.

Medeiros: “I had an employee who came to me and said he wanted to go through the legalization process. His wife was legal, he wasn’t and he was going through the process and he needed to reenter his homeland and go back to Mexico. He asked if I would hold his job for him and if his wife and family could continue to live on the dairy? I didn’t know what to expect, but he said it could take anywhere from three months to a year. He reentered Mexico in November and in December he had a hearing at the counsel in Juarez. He hired a bodyguard to transport him from the hotel to the counsel. He did his interview, took a physical and had his immunizations, which cost him $800 and his attorney fees $5,000. He had to reschedule another interview in February when he’ll find out if he has been accepted. In February he called me and was crying on the other end of the phone. He had been denied, ‘for lack of evidence.’ He said he was told he would have to  stay in Mexico a year.

“His wife was still living on the dairy. She was pregnant and their baby was due in July. Their lives had been totally disrupted. He sold everything he owned to do it right. During the process, he lost his brother back in the U.S. and was unable to reenter to attend the funeral. However, that tragedy got his case moved along faster than expected and he was cleared for legal entry into the U.S. in 7 months. He is currently working for us. It was a lengthy and difficult process, and this is one big reason we do need immigration reform. There are a lot of employees out there who are afraid to go through the process. We need to simplify something in order to get these people legalized who deserve to be legalized.”

Raimondo: “I get calls like this all the time. In some ways, the challenge for this industry is the humanity of the situation. I can tell when I look out at your faces, nobody like the idea of firing these people because they can’t fill out this paperwork, especially for those who may have been with you for a long time. You tend to work side-by-side with these folks and in many cases they live on the dairy and you watch their children grow up and become part of your family.

“This process is very disruptive for families and for your average dairy worker, $5,000 is a fortune. As Melvin said, this man had to sell everything he owned; lost his brother in the process and couldn’t even attend the funeral. There is a human toll here that we often forget about over political rhetoric. Melvin did what he could do by helping the man’s family. But the one thing Melvin couldn’t do was to keep the person employed. When he was back in the country legally, he could employ him because he was authorized to work.

 

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