Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, better known as SB 1070, is due to be implemented this month, and will grant expanded investigation powers to police and enable arrest based on an officer’s reasonable suspicion that an individual is in Arizona illegally.
The difficulty for businesses is obvious – employers are the front line for determining work authorization status. They must be responsive to new layers of enforcement that are focused on immigration, and they must avoid discrimination based on national origin or citizenship status. The issues are complex, dynamic and controversial.
Arizona employers will need to protect the continuity of their work force and staffing levels by mitigating the chances that employees could become incarcerated under this new law. Consult with legal counsel and follow this advice:
Organize and audit your company’s I-9 and e-Verify processes to ensure that your employment verification process is well managed. Employers who are found to employ undocumented individuals could face criminal and civil liabilities.
Properly train your company’s first-line receptionist on how to respond to calls and visits from Immigration and Customs Enforcement (ICE) or local law enforcement asking immigration-related questions.
No employee should be interviewed alone by ICE or by a police officer. Any enforcement visit should include a warrant or ICE Notice of Inspection, which should be immediately and carefully reviewed by an attorney.
Advise employees to carry proper government identification with them at all times, such as a valid driver’s license or a Social Security card.
Employees who are in the U.S. on work status should have on them at all times their immigration document evidencing status and work authorization. The law requires that the original documents, not copies, be presented upon request.
What is the risk to employers?
Employers may be prosecuted for violations of state and federal statutes unrelated to the employer sanctions provisions. For example, the deliberate hire of persons illegally in the U.S. may violate federal employment statutes, criminal anti-smuggling or harboring provisions, and trigger investigation for non-payment of employment taxes and criminal fraud. State statutes like Arizona’s Employer Sanctions Law are the most fearsome, with penalties including the loss of business licenses.
The system for verification of employment eligibility is far from perfect, but the penalties for non-compliance by employers can be substantial. Immigration Reform Control Act (IRCA) penalties include fines ranging from $250 to $10,000 per unauthorized employee, and imprisonment of up to six months or both.
Tools for employers
To better ensure that employees are IRCA work authorized, there are some well-recognized tools. The best is the United States Citizenship and Immigration Services’ e-Verify program. Required in Arizona by the Legal Arizona Workers Act, e-Verify is simple and reliable. It requires that the user sign a memorandum of understanding with the USCIS, and it may be used only for new hires, with a few exceptions for designated federal contractors.
The Social Security Administration’s (SSA) Enumeration Verification Service can be used to verify Social Security numbers (SSN), another method to ensure, at a minimum, that the employee’s SSN matches with his or her name and gender. Information on verification of SSNs is available at 800-772-6270 or online at www.ssa.gov/employer/ssnv.htm. This is a simple, free method not requiring a memorandum of understanding, and can be used to check small numbers of names, or if registered with SSA, groups of more than 50 names.
Congress may speak
As Congress debates comprehensive immigration reform and SB 1070 is tested in court, one thing is clear – federal and state governments are making employers the gatekeepers of legal status. Businesses that thoroughly educate all employees about the implications for each individual, their department and the workplace as a whole will remain a step ahead.
