The Risks of Hiring Undocumented Employees
Four women have settled their discrimination lawsuit with a large manufacturing employer.
The women accused the employer of giving preferential treatment to Latinos. They claim the employer did not offer them jobs until after a 2008 workplace raid on undocumented immigrants. One woman alleges that she applied for a position with the employer every three to six months for about six years, and the other plaintiffs made similar allegations.
According to the women's attorney, the employer acted on racial stereotypes that Latinos work harder than blacks and whites and that Latinos put up with working conditions other workers may find objectionable.
According to the lawsuit, undocumented immigrants from Mexico received preferential treatment. Immigration agents did, in fact, detain almost 600 undocumented immigrants during a raid on the employer prior to the lawsuit. Most of the workers were deported and some face identity theft charges. In February 2011, the employer paid $2.5 million after pleading guilty to conspiracy to violate immigration laws.
The lawsuit further alleges that the employer knew it was hiring undocumented immigrants and even instructed some on how to get false identities. In fact, some of the illegal workers were given jobs even after the Social Security Administration informed the employer that their Social Security numbers were not valid. "Mississippi Company Settles Lawsuit Alleging it Favored Latinos," latino.foxnews.com (Feb. 13, 2012).
Commentary and Checklist
The source article points to several areas of high risk in hiring undocumented workers. First, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on, among other things, race, color, national origin or ethnicity.
The prohibitions include discrimination against one class in favor of another.
Allowing managers to make employment decisions based on racial stereotypes puts an employer at high risk for discrimination charges.
Second, employers also may incur criminal penalties for engaging in a pattern or practice of hiring, recruiting or referring unauthorized aliens for a fee. Hiring workers who are not authorized to work under the E-verify process can lead to criminal prosecution and imprisonment. Every new employee must complete a Form I-9 and provide employers with documentation establishing both identity and eligibility to work in the United States. In addition, an employer should know and comply with its state's immigration and employment laws.
Lastly, the Federal Trade Commission (FTC) estimates that as many as nine million Americans have their identities stolen each year. If the employer in the above-mentioned article did aid workers in identity theft, as accused, it will face criminal punishment as well as civil liability in connection with the thefts.
The E-Verify system is an online federal screening tool that matches employee information to Social Security Administration (SSA) records. According to the Department of Homeland Security, E-Verify is currently the best way for employers to electronically verify the employment eligibility of new hires. The program also improves the accuracy of wage and tax reporting and protects jobs for authorized workers.
The U.S. Department of Homeland Security, Citizenship and Immigration Services provides more information on E-verify for employers, including links to resources.
In order to avoid litigation, here are some helpful hints for using E-Verify:
- Federal contractors were required to use E-Verify as of September 8, 2009;
- Employers must post a notice informing employees of their use of E-Verify;
- E-Verify must be used for new hires only. It cannot be used to verify employment eligibility of current employees;
- If used, E-Verify must be used for all new hires regardless of national origin or citizenship status and cannot be used selectively;
- Employers may not use E-Verify to pre-screen applicants; instead, use the system after hire and completion of Form I-9;
- If an employee receives an information mismatch from his or her Form I-9 and SSA and DHS databases, the employer must promptly provide the employee with information about how to challenge the information mismatch, including a written notice generated by E-Verify.
- Employers must not take any adverse action against an employee because he or she contests the information mismatch. This includes firing, suspending, withholding pay or training, or otherwise infringing upon his or her employment.
This informational piece was published on April 3, 2012.
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