Employers Watch Out for Fines for Employing Undocumented Workers

In Washington, two owners of an engine parts company were fined $100,000 for employing workers not authorized to work in the US, as reported by the New York Times.  This report illustrates the penalties that the Department of Homeland Security is imposing on employers with illegal workers on the payroll.  In 2009, Immigration Customs and Enforcement (ICE) has a $3 billion budget for worksite enforcement actions.  In 2008, it made 1103 criminal arrests of people in connection with worksite enforcement, and 5,184 administrative arrests.  In light of the risks of criminal fines and arrests, employers should review their Form I-9s to ensure compliance with the immigration laws.

Nice Guys Don't Have a Chance

Julie Myers Wood, the former head of US Immigration and Customs Enforcement, has no clue what it is like for an employer trying to run a small, or even large, business.  In her recent article, Nice Guys Finish Last, she describes an overly simplistic world of employers who are trying to do “good” by only employing lawful workers and others who can underbid those “good” employers by knowingly hiring workers who are not authorized to work in the United States.  She criticized the Department of Homeland Security of “dropping the social security no match rule” which placed the burden on employers who received social security no match letters to have the error corrected or risk liability for employing an individual unlawfully.

When I meet with my corporate clients, they are trying to wade through the countless regulations and laws that relate to employment authorization, discrimination, and unfair employment practices.  These employers are the “nice guys” who want to follow the law, but don’t know which laws to follow.  They know that by asking for a specific document in an I-9 context, they may have an unfair employment practice claim.  They know that if they unduly question only the hispanic looking applicants, they will have a discrimination claim on their hands.  They also are advised by me that the legacy INS has previously stated that a social security “no match” letter alone is not evidence that an employee is not authorized to work in the United States.  I have also advised them that the former Secretary of the Social Security Administration, admitted that there was no possible way that his agency would be able to correct a legitimate error within the 90 days allowed by the social security no match law.

So what are employers to do with the smattering of laws and regulations that make them scared of their own shadows?  Well, for once, the government has recognized this dilemma and decided the no-match regulation was unfair to employers (not to mention the employees who would have been wrongfully terminated due to simple errors in an imperfect system).  It’s good thing Julie Myers Wood is not in charge of US Immigration and Customs Enforcement any longer.