The Changing Landscape of Immigration Law and Farm Labor -An AG Industry Crisis

By Michael C. Saqui and Monte B. Lake

In the past several years, immigration has become the center of a heated national debate. While little progress has been made towards comprehensive reform, changes targeting employers have been occurring very rapidly. In this challenging environment, employers must keep abreast of these changes, and must have the flexibility to adjust their practices and procedures as the rules change.

The agricultural industry has attempted to get ahead of the intensified immigration-related worksite enforcement described in this article by pushing for the enactment of legislation that would provide a stable legal workforce by providing legal status to experienced agricultural workers and reforming the H-2A agricultural guest worker program. Following is a summary of the status of key agricultural legislative initiatives. The enforcement issues that they attempt to address, and suggested employer compliance best practices.

AgJOBS
 
The agricultural industry continues to pursue the passage of AgJOBS in Washington D.C. The bill enables individuals who have been employed in agriculture to obtain temporary status if they have maintained a clean criminal record and meet other eligibility standards. If the individual remains employed in agriculture for three to five years for specified periods, he or she can become eligible for permanent residency.

AgJOBS also reforms the H-2A agricultural guest worker program.

Given the difficult political environment for immigration, Senator Diane Feinstein announced the "Emergency Agriculture Relief Act of 2008," (EARA) which is a modified version of AgJOBS that would be more politically acceptable in an election year. EARA would provide temporary limited legal immigration status to experienced farm workers who must continue to work in agriculture for five years after passage of the law.

EARA would not enable workers to obtain legal permanent resident status, and would be capped at 1.35 million workers nationwide. Eligibility would be limited to those who can prove agricultural employment for at least 150 days or 863 hours or who have earned at least $7,000 working in agriculture during the 48 months prior to December 31, 2007.

The plan would also require emergency workers to labor at least 100 days per year in agriculture for each of the next five years and pay a $250 fine plus processing fees. The plan restricts workers from receiving social security benefits based on prior illegal employment.

As promising as it was, EARA was removed, as were all immigration related matters added in the Senate Appropriations Committee, on a procedural objection on May 21, 2008. Senators Feinstein and Craig and other EARA supporters are strongly committed to finding another appropriate vehicle in an effort to enact EARA this summer. The success of the amendment in the Appropriations Committee was beneficial because it demonstrated increasing Republican support for the EARA, as a modification of the original AgJOBS legislation.

Status of DHS’ “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. Essentially, the rule will require employers to terminate employees who cannot correct a mismatched Social Security Number or re-verify an I-9 without the suspect Social Security Number within 93 days of receipt of a mismatch notification from the Social Security Administration. After a federal court in San Francisco blocked the implementation of the no match rule, DHS agreed to revise it in an attempt to satisfy the court’s concerns by March 28, 2008.

On March 26, 2008, DHS published a supplement to the rule that does not change the safe harbor procedure, but does attempt to address the court’s concerns. The court was concerned that DHS exceeded its authority by interpreting discrimination law because DHS claimed in the original rule that employers could not face discrimination charges if they followed the safe harbor procedure. Disturbingly, DHS has completely withdrawn this statement, leaving open the question of whether safe harbor compliance will mean discrimination exposure.

The court also raised concerns that DHS had not completed a required analysis of the impact of the rule on small business. DHS completed the analysis, and concluded that the rule would have minimal impact on small business. However, DHS only considered the cost of implementing procedures to comply with the rule, and did not consider the impact of potential labor shortages.

The court also indicated that the DHS had not provided sufficient reasoning to support a change in policy, noting that mismatch letters had never previously been evidence of immigration violations. DHS explained in the supplemental rule that it did not consider the new rule to be a change in position, but rather a clarification of employer obligations under immigration law. Further, DHS explained that it believed that mismatches are an important tool in rooting out undocumented aliens in the workplace.

The supplemental rulemaking was under a 30 day public comment period, with comments due by April 25, 2008. The litigation remains on hold pending the final supplemental rule. DHS has told the court that it will need 60 days to consider the public comments before finalizing the rule, thus no new developments are likely before June 24, 2008. It is unlikely that the legal status of the rule will be resolved before this summer. Meanwhile, employers should not follow the procedures set forth in the rule until its legal status is determined.

Compliance with SSA No-Match Letters Pending Resolution of DHS’ No –Match Rule

What remains true about Social Security mismatch letters is that employers cannot ignore them. Employers should never terminate an employee just because a mismatch letter is received, and should take the following steps:

1. Verify Your Records: Compare the employee’s SSN with your records. If your records do not match the W-2 form, then correct the W-2 form and report the correction to the SSA on form W-2c. Maintain copies of correspondence submitting corrected information to the SSA.

2. Notify the Employee of the Discrepancy: If checking your records shows you have been reporting the number as provided by the employee, then inform the employee that the SSA has notified you of the problem and that he or she must resolve it with the SSA. Tell the employee to report the correct information to you once it has been resolved with the SSA. If you decide to impose a deadline, it must allow a reasonable amount of time to resolve the problem, as the employee may need to obtain a new Social Security card.

3. Confirm your Instructions in Writing: Write a letter directing the employee to resolve the issue with the SSA and ask the employee to provide updated information, and include it with the employee’s pay check. Retain a copy of the letter for your records. Maintain a list of the names of employees who received the written instructions. Remember, you must continue to pay payroll taxes for each employee, regardless of any mismatch.

If the employee returns with new information, correct your payroll records and send a letter to the SSA notifying the agency of the correction. If the employee returns with information that could indicate a lack of work authorization (i.e., a new name and/or SSN), then you need to follow up further with the employee to ensure that he/she is work authorized. Consider the totality of the circumstances and use a “reasonable person” test to evaluate the explanations given for discrepancies. Failure to do so could result in a determination that the employer has “constructive knowledge” of the lack of authorization.

If an employee fails to correct the no-match problem after having been given notice by the employer and shows upon a subsequent no-match letter, employers should consider disciplinary action or termination, unless a reasonable explanation is given by the employee.

4. Adopt procedures to deal with seasonal employees: Seasonal workers are often unemployed at the time no-match letters are received and employer follow up is impossible. Maintain a system that alerts you when seasonal employees who appeared on a no-match letter later seek to be rehired to enable you to implement your procedures upon rehire.

5. Write a letter to the SSA: Write a letter to the SSA reporting the steps you took to resolve the SSN conflict for each affected employee, including those you no longer employ.

6. Establish Company Policy and Apply it Consistently: You must establish and implement a policy and procedure for responding to mismatch letters and to maintain records of your response to mismatch letters. However, you must be careful to apply the policy consistently to all employees in order to avoid claims of discrimination.

RICO Lawsuits

Private plaintiff lawyers continue to sue agricultural employers under the federal civil RICO law based on allegations that representatives of the company conspired with labor contractors, personnel agencies or others in harboring illegal aliens or hiring 10 illegal workers during a 12-month period with actual knowledge they were illegal. These are class action lawsuits for which triple damages and attorney’s fees are sought. Plaintiffs will seek I-9 Forms and no-match letters in discovery. An effective defense requires that employers audit their employment practices and procedures as suggested elsewhere in this article prior to the filing of such a lawsuit.

State Immigration Laws

At last count, approximately 180 state and local governments have proposed or enacted laws that attempt to regulate employer conduct in the hiring process. Arizona is the most prominent, having implemented an “employer sanctions law” that requires employers to verify work authorization of employees hired on or after January 1, 2008 through the federal E-Verify program, and threatens employers with the loss of their right to do business in the state if they knowingly hire undocumented immigrants. States are increasingly passing laws to pressure employers on immigration, and more state laws may be on the horizon. Many of these laws are subject to federal preemption; however, until Congress enacts comprehensive immigration reform the problem will continue to spread.

Pending Federal Contracting Rules: The federal agency responsible for government contracting recently gave notice that a rule soon will be issued that will require federal contractors and subcontractors to use the E-Verify electronic employment authorization system as a condition of obtaining government contracts. Agricultural employers who supply the federal school lunch program or other government facilities may be covered by this proposal. This rule is expected to be finalized by July 2008.

Immigration Compliance Protocols: In this difficult environment, it has become increasingly important for employers to implement compliance protocols, and to ensure that they are prepared to face an I-9 audit or a raid by Immigration and Customs Enforcement (ICE).

Employers must be certain to have completed I-9 forms for all new hires, including U.S. citizens, and should be sure that all staff who process new hires are trained to properly complete the I-9 process. Employers should periodically interview staff to make sure they are properly processing new hires. Incomplete or improperly completed I-9 forms will result in exposure to liability! Periodic internal reviews of I-9 procedures are important to ensure compliance, and self audits should be a part of the program.I-9 forms must be kept on file for three years after the date of hire or for one year after termination of employment, whichever date is later.

All employers should have a knowledgeable designated representative in place who is authorized to meet and talk with ICE or U.S. Department of Labor (DOL) personnel, and should make sure that the representative knows when to contact the company’s attorneys and owner(s). Employees must know that they must refer ICE or other government inquiries to your designated company representative.

No management employee should submit to an interview or provide documents to ICE or other government agency without first conferring with your designated company representative. In a “raid” situation where criminal conduct is suspected, employers should never allow ICE to talk to any management or supervisory or other employees without conferring with the Company’s attorney. If ICE shows up, ask for identification and make sure they really are with ICE. The Company representative should call the agency to verify the person’s identity, and should contact the Company attorney immediately.

The Company representative should find out why the investigators are there to determine the authority of the agency and the rights of the Company. A “raid” requires a search warrant (except within 25 miles of the U.S. Border, if the grower or his agent gives consent, if the government is in hot pursuit of an undocumented alien, or if the land is not being used for agricultural purposes), and does not require 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) but does not require a search warrant.

The Company representative must be able to stay calm. Losing one’s temper will only make matters worse. The Company should not refuse or delay providing documents it is legally required to provide, but the representative should not forget that it can ask for time to compile the records requested by ICE agents. No documents should leave the premises without making copies, and the Company should not turn over more documents than the law requires.

In a raid, the search warrant will identify the agency or officers, the location to be searched, the specific items or individuals to be seized (if known), and an expiration date for the court order. Agents are not entitled to search outside the scope of the warrant. The Company should make an inventory list of the areas searched and the items and computer files seized. During a raid, the Company representative may accompany ICE officers on their search, and should always take notes on everything that is occurring. The representative should be sure to note if any unusual or disturbing behavior occurs (such as “badgering” employees or questioning only foreign-appearing employees.) The Company should never hide employees, advise them to run or hide or help them escape from the premises.

In an I-9 audit, the Company is technically required to produce only the I-9 forms for inspection. If ICE wants to see anything else, the Company can require the agent to get a valid subpoena. The Company is not required to keep or produce photocopies of the documents employees presented to establish identity and/or employment eligibility unless the Company has chosen to keep copies of the documents. If the audit is going to be on Company premises, the Company representative should sequester the ICE agents to limit their access to the business. If the agents cannot be sequestered, then the Company should offer to deliver copies to the agency for the audit.

If, while preparing for the audit, the employer discovers errors on I-9s or missing forms, it 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, but should never back date an I-9 to the date of hire!

Employers must remember that they have rights. While it is always important to be cooperative in both routine audits and in more serious raids, judgments need to be made as to the extent to which an employer should communicate with the government, For example, no one is required to answer any questions. The Company should consult with its attorney before giving agents access to employees or management, or before allowing any press contacts, especially if the government suspects criminal activities have been carried out by the company or some of its employees.

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.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Saqui & Raimondo at (831) 443-7100, WWW.SRLABORLAW.COM in Salinas, or on more specific immigration-related matters Siff & Lake, LLP at (202) 457-7754 in Washington D.C WWW.SCLLAW.COM.