Recent Immigration Developments Impact Agricultural Employers (3-2-2008)

Increased Fines

On February 25, 2008, the Department of Homeland Security (DHS) published a new regulation that increases civil penalties which employers will face if they violate immigration laws.  DHS has explained that the new amounts were calculated in accordance with a statutory formula for adjusting civil penalties to take inflation into account. As a result, the fines for hiring undocumented aliens rose for the first, second, and third and subsequent offenses. Under the new regulation, the range of possible fines for the first offense is from a minimum of $375.00 per violation to $3,200.00 per violation. For a second offense, the range is from $3,200.00 to $6,500.00. For third and subsequent offenses, the range is from $4,300.00 to $16,000.00. These penalties can add up very quickly and magnify the importance of effective compliance protocols.

I-9 Form Updated

For many years, the I-9 form published by the INS, and later, the DHS, was outdated and did not reflect the current requirements of the applicable law and regulations. Finally, on November 7, 2007, after years of promising an update, the federal government released an updated I-9 form that it believes conforms with applicable law. Shortly thereafter, DHS published instructions about the use of the correct form and required employers to use it after December 26, 2007. The only permissible form has the following: "Form I-9 (Rev. 06/05/07) N" in the lower right hand corner, and can be obtained from the DHS website, or at http://www.srlaborlaw.com/. DHS also updated its employer I-9 handbook (Form M-274) to provide current information to employers about the changes to the new form, including the details of modifications to the list of acceptable documents for establishing both identity and citizenship. The instructions to the amended I-9 form notify employers that providing a social security number in Section 1 ("Employee Information") is voluntary unless the employer participates in E-Verify (formerly "Basic PILOT"). However, if an employee uses a social security card to establish employment eligibility, the number still must be recorded in Section 2 ("Employer Review"). In addition, an employer may now sign and retain I-9 forms electronically.

Pending DHS Regulation of Federal Contractors' Employment Verification

DHS is also preparing two proposals for publication as proposed regulations. The first would require federal contractors and vendors to use the federal government's E-Verify system (formerly known as "Basic Pilot") to confirm the employment eligibility of their employees electronically or telephonically. The full scope of the new requirement will not be known until the regulations are finalized, but it could impact agricultural cooperatives and entities that sell products to the school lunch program as well as anyone else who does business with the federal government.

Status of "No-Match" Rule

Last year, DHS proposed regulations establishing what it called a "safe harbor" for employers who receive no-match letters from the Social Security Administration. After the federal court in San Francisco blocked the implementation of the no match rule, DHS agreed to revise it is an attempt to satisfy the court's concerns by March 28, 2008. DHS reports that the revisions to the rule should be released by the Office of Management and Budget any day. It is expected that the public will have a 30-day period in which to comment. Meanwhile, DHS has appealed the federal court's injunction and the case is currently stayed until March 28, 2008, pending DHS' re-issuance of the new rule.

Developments in the Courts

1. The Employment Rights of Undocumented Workers

Just like federal agencies, the courts have been very active in interpreting immigration laws.  One continuing theme is that employers who employ undocumented workers must still comply with all applicable labor laws. For example, the District of Columbia Circuit Court of Appeals recently reviewed an order of the National Labor Relations Board that required a company to bargain with a union, even though the votes of undocumented workers allowed the union to win the representation election.

In Agri-Processor, Inc. v. National Labor Relations Board, ___ F.3d ____; 2008 WL 53879 (D.C. Cir.Jan. 4, 2008), the Court of Appeals in a 2-1 decision upheld what two of the judges described as a "peculiar result" based on Supreme Court precedent that the immigration laws did not necessarily repeal or limit any other workplace protection law. This was true even though the employer was not allowed to employ those workers in the first place.

2. Arriaga-related Developments

For many years, agricultural employers using the H-2A guest worker program have been affected by the spread of the "Glassboro/Arriaga" rule that the federal minimum wage law requires that an employer pay, at the end of a worker's first week, for his or her in-bound transportation and related expenses when those expenses are "for the primary benefit of the employer" and reduce the worker's wage to below the minimum wage. Originally, legal services attorneys focused their arguments against users of the H-2A program. Now, they have begun using Glassboro/Arriaga-type arguments against users of the H-2B program and have had some success. However, the limitations on these arguments are beginning to appear. In Rivera v. The Brickman Group, 2008 WL 81570 (E.D. Pa. Jan. 7, 2008), a federal district court in Pennsylvania generally held that the Glassboro/Arriaga rule could be applied to H-2B workers recruited in foreign countries. However, it distinguished foreign recruiting from long-distance recruiting within the United States and stated that travel within the United States would likely not be covered under this doctrine. This decision may point the way to further limitations on the Glassboro/Arriaga rule. Immigration law impacts every employer, especially agricultural employers. Recent developments in the federal agencies continue a strong pro-enforcement trend while recent developments in the courts continue a trend strongly protective of documented and undocumented workers. Accordingly, employers must implement and maintain practices that promote compliance not only with immigration laws, but with laws governing wages, hours, and other terms and conditions of employment.

COUNSEL TO MANAGEMENT:

Immigration continues to be an area of focus for federal agencies and courts, and the attention on the issue is not likely to decline.  As the presidential election approaches, both political parties will want to convince the public that they hold the "solution" to the problem.  Unfortunately, employers will be caught in the middle of this political storm, and agriculture will be one of the most targeted industries for government enforcement and private lawsuits.  Agricultural employers must be proactive in this environment, and must take steps to protect their businesses by implementing practices and protocols that ensure compliance with immigration laws as well as labor and employment laws and regulations.  Employers should audit and review their practices, and should shore up any weak areas in safety, wage and hour, labor relations, discipline and human resources to be prepared in the event they become a target.