Monte Lake on immigration issues

Thursday, 04 October 2007

The Department of Homeland Security announced its final rule regarding how employers must handle mismatch letters from the Social Security Administration. Since an estimated 65-70 percent of nursery field work is done by undocumented workers, this new rule should rock the industry. I caught up with attorney Monte Lake to find out potential implications.

Q. What type of impact could the Department of Homeland Security’s new rules for managing Social Security mismatch letters have on the nursery industry?

A. The final rule will have a dramatic impact on nurseries, as well as all other employers with large immigrant populations in their work forces.

Under the rule, which took effect on Sept. 14, employers will have a period of up to 90 days from the date of receipt of a no-match letter during which to determine, in conjunction with affected employees, whether a Social Security Number and related name can be verified with the SSA.

A major difference between the new rule and prior SSA directions related to no-match letters is that under the new rule the employer has an affirmative duty to verify the number and name, rather than leaving the responsibility solely with the employee. Failure to do so could result in loss of the so-called “safe harbor” for the employer.

This could result in a large number of employee terminations in the many anticipated instances where the SSN can not be verified. Without legislation providing for a reliable means of legal workers, such as AgJOBS, this could be devastating to nursery employers.

Q. With no good employee verification system in place, how fair is Homeland Security’s new rule?

A. Without legislation providing a “bright line” for employers to comply with the immigration law’s hiring and employment requirements, in addition to eliminating the threat of discrimination lawsuits if employers terminate workers based on clear-cut compliance guidelines, the no match rule will aggravate, rather than solve the confusion that stems from the current dysfunctional laws that govern the hiring process.

The rule does not address the problem of identity theft. It simply tells an employer whether the name and SSN match in the SSA database. So, undocumented workers who are able to steal the identity of persons with legitimate SSNs will be able to get through system and employers will be able to hire them, as long as they have no independent knowledge that the workers are undocumented.

Q. According to Homeland Security, not responding to SSA mismatch letters could amount to ‘constructive knowledge’ that an employee is an illegal alien. What other actions should growers be aware of that could be viewed as constructive knowledge that a worker is illegally employed?

A. Constructive knowledge is a legal term that essentially means circumstantial evidence which would lead a person through the exercise of reasonable care to know a person is an illegal alien.

In addition to the failure to verify SSNs and names under the new no-match rule, other examples given in the Homeland Security regulations include the failure of the employer to fill out an I-9 Form and presentation of a labor certification application by an alien to an employer as a work authorization document, thus indicating that the worker currently does not have work authorization.

Another example would be for an employer to allow a third party, such as a labor contractor, to supply it undocumented workers.

Q. What are the safe-harbor proposals in Congress that might protect growers from the new Homeland Security no match rules?

A. A number of immigration-reform bills introduced during the last several years would require mandatory electronic verification of work authorization and identity documents.

This process would require all employers to check alien documents and SSNs and names through Homeland Security and SSA databases to confirm the validity of the documents before an applicant could be hired.

These bills all would provide employers that complied with the specific procedures mandated for the electronic verification process with a good faith defense or “safe harbor” if workers who were authorized during the verification process later were determined to be unauthorized to work.

A mandatory electronic verification process has not yet been enacted. Currently the voluntary prototype for such a process is called the Basic Pilot program or E-Verify system.

Name: Monte B. Lake

Title: American Nursery & Landscape Association certified immigration and employment law consultant.