No Wonder this Job is So Hard: Contradictory Messages From the Government

Being in Human Resources today is no "bed of roses." (For my non-English speaking readers, this idiom means "a comfortable situation". Though I have often wondered since roses also have thorns.) Anyway, I digress. The fact is that being in HR is tough, especially for the compliance side of the house. Part of this difficulty comes from the contradictory messages the Federal government puts out. On the one hand we have laws that prohibit illegal, or in today's parlance "undocumented", aliens from holding jobs in the United States. This the 1986 Immigration Reform and Control Act for those of you unsure. This law created that form, the I-9, that so many companies screw up on. In addition to that, we have a whole set of laws designed to deal with businesses that do business with the government, aka Federal Contractors, that prohibit any use of illegal labor. These regulations require that federal contractors even verify legal status by using the E-verify system. So you would think the Federal government would be dead set against ANY promotion of illegal workers.

Yet, in this video, U.S. Secretary of Labor Hilda Solis, announces that even if you are "undocumented" you are to be afforded protection of US laws. Some groups are saying she is violating the law. I don't think that technically correct, but the message certainly is contradictory to what other aspects of the Federal Government (USCIS) and the OFCCP (which is part of DOL) say to employers.


By the way, I dicussed the We Can Help site that this video appears on back on April 6th, when I discussed US Department of Labor: It's War! And Employers Are The Enemy . This video shows definatively that We Can Help is not an employer friendly program.

E-Verify: Imperfect But Improving

According to an independent evaluation done in 2008, and reported in the April 2010 issue of HR Magazine, E-Verify, the background checking system of the Department of Homeland Security, "...is much more effective than the Form I-9 verfications process used by employers not using E-Verify." This is actually good news. First reports of the system reported that it was badly marred.

The research group Westat, Inc. detailed the results of their study in this 338 page report. The study found that 94% of the workers whose employment verifications were run through the system were identified correctly as eligible for employment in the United States. The remaining 6% did not have proper paperwork, however, 3% of them were still given authorization. Much of these errors were due to those workers having fraudulant or stolen identities. The effort in the future will be to cut down on this fraud.

Employers using the E-Verify system do need to realize that there are flaws in the system and need to document their efforts to use and verify a worker's legal right to work in the US. Have your documentation to prove that you did your best just in case a worker gets busted and fails a closer look.

Government to Check I-9s in a Nationwide Audit

According to an article on SHRM's website (sorry you have to be a member to read this one) U.S. Immigration and Customs Enforcement (ICE) issued notices to 652 businesses that they will be audited. In all of 2008 they only issued 503. So obviously they are stepping up activity. The agency is trying to build criminal cases against employers before they conduct raids. According to the SHRM article:

"As part of its shift in strategy, ICE is going after employers instead of undocumented workers, according to Mira Mdivani, an immigration attorney with The Mdivani Law Firm in Overland Park, Kan., in a July 7 interview."

Apparently the targets of the investigations, which are widespread, were gathered from No-Match letter data, use of E-Verify, union instigation and other "investigative measures." The agency is being secretive. According to the article "...ICE officials “refused to tell us how to define substantive violations of I-9s versus technical violations. We thought we knew, but they won’t tell us.” And ICE wouldn’t disclose the guidelines that are being used to fine employers, ...."

Mary Pivec, an attorney with Keller and Heckman in Washington, D.C. provided SHRM with the following list of items that ICE might be looking for on an audit.

• Original I-9s. Forms I-9 must be retained for three years after the date of hire or one year after the date of termination, whichever period is longer.
• A spreadsheet listing alphabetically all current and terminated employees with hire and termination dates in electronic form Word or Excel, non-PDF, including the names, Social Security numbers and dates of birth of each employee.
• Copies of quarterly wage and hour reports and/or payroll data for all employees—current and terminated—covering the period of inspection, as well as quarterly tax statements.
• Business information, including the employer identification number, taxpayer identification number, owner’s Social Security number, owner’s contact information (e.g., address, information, phone numbers and e-mail addresses), articles of incorporation (if applicable) and copies of business licenses.
• Copies of Social Security no-match letters.
• A copy of any I-9 policy.
• The name and responsibility of those who complete I-9 forms.
• The date the business was established, form of the business, where it is incorporated and its revenue.
• The department or job titles of employees.
• Quarterly unemployment insurance reports with the state or quarterly returns for Federal Income Contributions Act taxes.
  

According to the article and the attorneys HR needs to own this process. My experience has been that too often forms are incomplete because HR does not own the process. And since this is a law that can result in jail sentences great care needs to be taken in completing the information on this form.

The advice in the article is "Designate a lead person to spearhead immigration compliance at the company and adopt an immigration compliance policy that incorporates recommended ICE best practices that make sense for your company, she recommended, and become thoroughly familiar with ICE’s I-9 handbook. Conduct annual immigration audits in cooperation with legal and provide annual training, keeping the big picture clearly in focus as enforcement strategies and laws change. That way, instead of scrambling after receiving an I-9 audit notice, Mdivani said, a company will be prepared."

So, depending on what your company does, what your history has been like and how you have things set up you may have a lot of work that needs to be done. But I hope this makes you sit up and pay attention.

Social Security Number "No-Match" , I-9 and Homeland Security: Someone Explain This One

The Department of Justice filed an appeal, on behalf of the Department of Homeland Security, on the injunction issued by a San Francisco federal judge on the implementation of the "No-Match" Rule. Michael Chertoff, Secretary of the Department of Homeland Security issued a statement on December 5th regarding the No-Match Rule stating that " I believe that the No-Match Rule is a major step forward in preventing employment of illegal migrants. Contrary to the ACLU’s incorrect statements, the rule is not harmful to legal workers. DHS is not abandoning it."

He further stated: "Employers receive a No-Match letter from the Social Security Administration when an employee’s name does not match the social security number it has on file. Sometimes there is an innocent explanation for this discrepancy, such as a clerical error. But sometimes the discrepancy reflects the fact that the employee in question is an illegal alien. When employers receive such No-Match letters, they are on notice that the employees in question may not be authorized to work."

He goes on further to state how important the No-Match letters on Social Security Numbers is to the security of The United States. I happen to agree with him but PLEASE, SOMEONE EXPLAIN TO ME, if this is so important why is it that THE SOCIAL SECURITY NUMBER ON THE NEW I-9 IS VOLUNTARY! Go figure.

Department of Homeland Security Mad at Illinois

Back in May on my blog called "Catching Up" I wrote an item about the employment verification system the Federal government was going to require all employers to use when they hired someone. It is currently required of government contractors. Well, apparently in response to this, (the announcement, not my blog) the State of Illinois passed a law barring businesses from using the system until the system's databases become faster and more accurate. Because the program requires employers to fire employees within 8 days if they are not verified the State of Illinois argued this subjected employees to unfair treatment under the federal government's flawed program.

The Justice Department, on behalf of Homeland Security, filed a civil suit to stop the enactment of the Illinois law, with Homeland Security Secretary Michael Chertoff saying "This is about as bold an anti-enforcement measure as I've ever seen," and further calling it a "...direct assault on the federal law."

This will be interesting to watch.

Catch Up Time

Ok, I have not blogged in a month and a half. Vacation is part of the reason. Overcoming the intertia of not blogging is tough. Restarting something, anything, after a layoff is tough. I am going through that right now with exercise and dieting too... Oh well here are some catch up thoughts.

1. Vacation- We don't take enough of it in this country! We are behind the rest of the world in how much we take. I have come to the conclusion that vacation needs to be taken in a minimum of two weeks, especially if you are going out of the country. We Americans overwork ourselves and it is to our detriment. While on vacation in the Dominican Republic I met a young woman who had to go and check her work email twice a day. I don't think she ever relaxed.
2. Immigration- Whether or not you think the immigration plan the President and Congress is working on is right or not it is going to be a nightmare for Human Resources departments. It will require the following: Use of electronic verification that is currently not designed to handle the 7 million employers that will have to sign up; REVERIFICATION of ALL your current employees, regardless of how long they have worked for you; a follow up system on everyone that gets kicked out of the system (currently about 15% of the verifications that get sent in electronically.) In addition, the fines go up exponentially. YOU HAD BETTER PAY ATTENTION TO THIS ONE. SHRM feels this will have the impact of FMLA. (Oh great!)
3. Minimum Wage- How many of you noticed that the increase in the minimum wage that got snuck into the Iraq War funding bill? It will go into effect 60 days after the President signs the bill. So far I have seen no details, but I am sure they are forthcoming.

Well, that will do for now. I will keep it going now... at least until I go on vacation again and inertia takes over once more.. LOL.