The Labor Question

 Since the mid-1980s, agricultural employers have been well-advised to accept worker identity and employment authorization documentation that appear to be reasonably genuine, when reviewing employment eligibility of workers under the Immigration Reform and Control Act of 1986 (IRCA). IRCA contains several anti-discrimination provisions, where employers can be sued for citizenship discrimination if they take action over employment authorization documentation for impermissible reasons.

Following the inception of the requirement that employers verify employment eligibility through the use of Form I-9s, many employers have received no-match letters from the Social Security Administration indicating the combination of name and social security account number the employer has submitted for an employee does not match the agency’s records. 

Change On The Horizon

Similarly, the Department of Homeland Security (DHS) more recently has been sending letters notifying certain employers that the immigration-status or employment-authorization documentation presented by the employee is not consistent with this agency’s records.

Upon receipt of such no-match letters, what should a prudent employer do? Previously, the simple answer was to advise the employee of the no-match letter and ask them to go and rectify the error directly with the agency. This simplistic response, however, may soon be deemed to be an insufficient response by proposed new federal regulations.

On Nov. 2, 2005, DHS launched its Secure Border Initiative. To help employers detect fraud at their work sites, DHS issued proposed new regulations that describe an employer’s current obligations under the immigration laws, and its options for avoiding liability after receiving no-match letters. 

To Terminate Or Not To Terminate

Although not yet effective, DHS’s proposed new regulations would essentially require employers who receive no-match letters to take reasonable steps to rectify the data errors within a maximum of 63 days. If unable to rectify the errors after 63 days, the proposed new regulation suggests that employers must choose between taking action to terminate the employee or face the risk that DHS may find that the employer violated federal immigration law.

Although not yet effective, DHS’s proposed new regulations ultimately would place employers who have received no-match letters in the difficult position of possibly terminating employees whose records cannot be rectified in a timely manner and facing discrimination lawsuits from the terminated employee, or facing sanctions from DHS for knowingly employing unauthorized workers. Current guidance from the Social Security Administration says such no-match letters cannot be used to terminate an employee.

Therefore, all agricultural employers — particularly those who have received no-match letters in the past — should be monitoring these new proposed regulations from DHS to determine whether any further revisions will be made before implementation. 

Stay Vigilant

While it is hopeful that DHS will change the proposed regulation to soften the new suggested steps for employers to take upon receipt of no-match letters, agricultural employers are further reminded that virtually every current immigration reform bill now pending in Congress contains a requirement that employers verify employment eligibility of their applicants by confirming the validity of certain employment documents, such as social security numbers. The verification of social security numbers is currently available through the Social Security Administration. However, its use is not currently mandated, but made simply a voluntary option available to employers.

All agricultural employers should review their current recruiting and hiring protocols and ask this simple question: "When mandatory verification comes, are we certain that we will be able to recruit and hire ample personnel for our operations?" If you’re unable to answer an absolute "yes" to this question, efforts should be undertaken to revise the recruiting methods currently in use, or consider alternate sources of recruiting labor. 

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