In The News
Since the failure of immigration reform in 2007, U.S. Customs and Immigration Enforcement (ICE) has stepped up its efforts to bring employers into compliance with existing immigration and citizenship rules. Employers must take these efforts seriously, because failure to comply with the rules can lead to prison time. As described by Homeland Security Secretary Michael Chertoff in the Department’s online Leadership Journal, criminal arrests went from 165 in 2004 to 863 in 2007. Through May 31, 2008, there had already been 875 arrests.
Recently, an ICE investigation in Nevada led to guilty pleas by a McDonald’s franchisee and two of its executives. According to a July 16 Justice Department press release, the franchisee will pay a $1 million fine and serve a year of probation. The franchisee’s former vice president faces up to five years in prison and a $250,000 fine. The controller has been charged with a misdemeanor. The investigation of the 11 McDonald’s Restaurants that the franchisee operated in the Reno area turned up 58 undocumented aliens working illegally. The plea agreement details how the franchisee’s management employed individuals they knew were in the country illegally, including two restaurant managers, by furnishing them with names and Social Security numbers belonging to other individuals.
What Employers Must Do
The immigration laws require employers to verify identity and authorization to work in the United States for every employee they hire. Employers do this by collecting information from new employees on the I-9 Form and examining original documents presented by the employees from those listed on the form as acceptable for verification. The employer must accept the document or documents proffered by the employee so long as they are on the list, and appear to be genuine.
Employers may not collect any information about immigration status until the employee begins employment, and must verify identity and authorization to work within three business days of the commencement of employment. It is illegal to discriminate against an applicant or employee based on national origin or citizenship status, unless the individual is not authorized to work in the United States. For further information about the I-9 process, review the US CIS Handbook for Employers.
Employers must be careful to follow the verification process to the letter. Although undocumented workers do not have all the rights of legal employees (see, for example, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), holding that the NLRB cannot award back pay to undocumented workers), they may sue for unpaid wages, unauthorized discrimination, and are entitled to workers compensation benefits. See Reyes v. Van Elk Ltd., 56 Cal.Rptr.3d 68 (Ct. App. 2007); Farmers Bros. Coffee v. WCAB, 35 Cal.Rptr. 3d 23 (Ct. App. 2005).