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Immigration Status Doesn’t Preclude Enforcement Of Employment Laws

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in Human Resources

As every employer who has been faced with filing I-9 forms and checking work eligibility papers knows, the illegal alien employment issue has been around for decades, and has even engendered several new twists to the usual problems.

1. Third-party responsibility. In 2005, Wal-Mart agreed to hand over $11 million as a "donation" to the Immigration and Customs Enforcement division (formerly the INS) of Homeland Security. The problem: A number of independent contractors it had hired to clean its stores were employing illegal aliens. Those contractors also forked over $4 million.

Good moves: Even with a true contractor relationship, you can get caught up in the legal eligibility whirlwind. Before you hire a contractor, get a guarantee, in writing, that it verifies workers' employment documents and does not knowingly hire illegal aliens. Consider conducting your own audit of their records. Ask to spot-check random I-9s to be sure they are filled out correctly.

2. Changing laws. Last year, a new law came on the books that allows you to complete and store I-9s in an electronic format. But it doesn't change your obligations to verify identity and employment eligibility documents.

Good moves: You must continue to fill out I-9 forms within three business days of the employee's first day of work. You also need a strong grasp of the types of documents the government allows you to accept; and remember that you cannot specify or suggest which documents the employee must present. And you've still got to analyze the documents to make sure they appear reasonably genuine, and relate to the person using them.

3. Litigation. A number of court cases have seen employers attempt to make an issue of eligibility during an employment lawsuit. Courts aren't buying it. Examples: When employees sued a company for national origin harassment, the firm sought discovery of their citizenship status. Said an EEOC attorney: Title VII's protections against discrimination apply to all employees whether they are documented or undocumented. In a Fair Labor Standards Act (FLSA) case, the court said: The question of the employees' immigration status is simply not relevant to their claim for overtime.

Good move: Make sure your anti-discrimination defenses are solid in the workplace. Technical strategies won't cut the mustard once the legal cat is out of the bag.

4. Benefits. In the last year, the California supreme court has granted Workers' Compensation benefits to an undocumented worker, and the Maryland court of appeals approved WC benefits for an undocumented worker injured while performing work he was not legally permitted to perform. That latter court noted that only one state court decision (Wyoming supreme court) has construed its Workers' Comp law to exclude undocumented workers.

Good moves: The obvious first step is to make sure all your workers have the correct working documents. The equally-obvious second step is to ensure that working conditions at all your work sites are safe and healthful.

5. Taxes. A Missouri developer faces up to five years in prison per count after being charged with 12 felony counts of failure to deduct state employer withholding taxes from the cash payments he made to the undocumented aliens he hired to work for him.

Good move: Again, an obvious doubleheader. Don't hire illegal aliens and don't fail to pay your taxes.

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