Considering the times we live in, it is not a bad idea for employers to know what they can, cannot and must do in terms of dealing with the government and their employees in the realm of immigration law.
A. Ensure I-9 Compliance
Now more than ever, employers want to be prepared in the event that the government seeks to hold them liable for immigration law violations and to maintain the stability of their workforce. First, when a potential employee walks through the door seeking employment, pursuant to federal law, all newly-hired employees must complete a I-9 Employment Eligibility Verification form. This is the document that establishes both identity and employment authorization, The types of identification needed include, as you would expect, a U.S. Passport or a Permanent Resident Card as well as a Social Security Card but, as the employer is both establishing identity and employment authorization, all of the documents that are listed in sections A, B and C at the US Customs and Immigration Services Website (see https://www.uscis.gov/i-9-central/form-i-9-acceptable-documents) can be used to accomplish this task.
Lest there be any confusion, to be properly verified an employee must have the appropriate paperwork. In the event that the employer hires the employee without such paperwork, there are other considerations that the employer must address. Taxes are a whole different ball game apart from potentially violating immigration law. The failure to pay appropriate payroll taxes to the government is not a viable option. Therefore, the employer can accept from an employee a taxpayer identification number (“TIN”) rather than a social security number at least for tax reporting purposes.
In addition, if an employer knowingly hires an unauthorized alien, an Administrative Law Judge from the Department of Homeland Security may impose penalties for failure to comply with the I-9 verification requirements. If the employer continues to maintain an undocumented immigrant’s employment, a cease-and-desist order may be issued in addition to a civil monetary penalty for each offense. While there are several factors considered when assessing the penalty, the fines can range from $627 to $5,016 per unauthorized employee for the first offense and increase for subsequent violations. Eventually, criminal penalties such as imprisonment for up to six months may be imposed for a pattern of practice of knowingly hiring unauthorized workers.
Employers should be mindful that payment of individuals “off the books” can result in additional criminal charges, including a willful failure to collect and pay taxes in violation of 26 U.S.C. § 7202 and tax evasion in violation of 26 U.S.C. § 7201 which are crimes punishable for up to 5 years imprisonment. The employer bears the burden of ensuring that every person they hire is eligible to work in the United States. Thus, even an inadvertent hire of an illegal worker may still expose an employer to civil and criminal sanctions under federal law.
B. “No Match Letters”
Employers want to avoid receiving “no-match letters.” While these “no match letters” have been discontinued and reinstated dover the years depending on who is in office, one should not be surprised that they are back. These “no-match letters” are issued by the Social Security Administration (“SSA”) to the employee and employer when the name or Social Security number (“SSN”) on the employer’s Form W-2 do not match SSA’s records to notify workers and employers of the discrepancy and to alert workers that they are not receiving proper credit for their earnings.
When receiving such a letter, it is the employer’s duty to double-check the employee’s status. For example, the employer must check records to ensure a transcription error did not occur. If that is not the case, the employer should meet with the employee and inquire about why SSA would point to this SSN as problematic. If the employer learns that the SSN is invalid, the employer will need to terminate the employee or have the employee not return to work. The Department of Homeland Security (“DHS”) will find that an employer’s inaction could place that employer on notice of a problem with the employee’s status.
If the employee contends that the SSN is valid, the employer should give the employee a reasonable opportunity (i.e., 60 to 90 days) to visit the local SSA office and attempt to obtain documentation to substantiate that the number is valid.
C. E-Verify
What about E-Verify? E-Verify is a system that helps employers verify employment eligibility of new hires and is voluntary for most employers. In New York state, there is no requirement to utilize E-Verify. It is, however, mandatory for federal contractors and employers in certain states that do require its use. However, E-Verify often produces inaccurate results and cannot detect fraudulent documents used by the employee with any certainty.
In any event, as maintaining I-9s is a requirement, the employer is required to keep these documents for 3 years after the date of hire and 1 year after the date of termination—whichever is later—and should always retain I-9s for any active employee no matter how long they have been employed. The I-9 requirement applies to both full-time and part-time employees.
What do you do if ICE comes to your door? ICE may enter public spaces of your business such as a lobby, supermarket, or reception area without a warrant. ICE is not permitted to enter private spaces such as interior offices or storage areas without a warrant unless permission is given. If ICE agents have a warrant, they may ask to inspect the I-9 forms and search for undocumented workers. Business owners do not have to speak with ICE agents or answer their questions. However, the best practices would include all employers having copies of the I-9s in their files ready in the event that ICE comes in demanding access. In terms of answering ICE’s questions, the best practice would be to contact your attorney and hand the matter over to him or her so that any question that ICE has can be answered appropriately.
In the event that ICE attempts to arrest any one of your employees, irrespective of whether ICE had the authority to do so in the first instance, an employer is not to interfere or obstruct whatsoever in any action that ICE is taking at the time. It is best to avoid an obstruction of justice charge where your best defense will be that ICE had no lawful right to act in the fashion that it did. As for your employees, they too do not have to speak with ICE agents.
Note that if presented with a warrant, a US District Court Judge or state court judge must sign it. An administrative warrant is not issued by the court, but rather by the agency itself and does not allow ICE agents to enter private areas without the employer’s permission. If ICE shows you an administrative warrant with an employee’s name on it, the employer is not obligated to say if that employee is working that day or not. Nor is the business owner required to take the ICE agents to the employee named on the warrant (even if he or she is at work at the time).To maintain some level of control during stressful times such an active ICE investigation, workers should be told to remain calm and remain in place.
Upon the ICE personnel leaving the workplace, you should contact your attorney providing as much background information concerning the number of agents, their time of entry, the time they left, actions taken and/or documents reviewed.
D. Undocumented Employee and Wage and Hour Law
Very simply, “the law in this Circuit is clear that a plaintiff’s immigration status has no bearing on her rights to recover unpaid wages under the FLSA or New York Labor Law.” Mrs. Bloom’s Direct Inc. v. Saavedra, No. 18-CV-8041 (OTW), 2019 WL 4733600, at *1 (S.D.N.Y. Sept. 27, 2019) (citation omitted); see also Kim v. Kum Gang, Inc., No. 12-CV-6344 (MHD), 2014 WL 2510576, at *1 (S.D.N.Y. June 2, 2014) (“The immigration status of the plaintiffs is not relevant in this case, in which they seek full payment for work that they have performed while in defendants’ employ.”); Campos v. Zopounidis, No. 09-CV-1138 (VLB), 2011 WL 4852491, at *1 (D. Conn. Oct. 13, 2011) (“[e]vidence of Plaintiff’s Immigration Status is inadmissible because it directly contradicts a large body of case law from numerous Circuits including District Courts within the Second Circuit clearly holding that all employees, regardless of immigration status, are protected by provisions of the FLSA.”).
E. Immigration Status and N.Y. Human Rights Law/Title VII
The New York State Human Rights Law (“NYHRL”) is composed of the New York Executive Law §§ 292 et seq. Under the Executive Law, it is an unlawful discriminatory practice for any “owner, … agent or employee of any place of public accommodation … because of the race, creed, color, national origin, citizenship or immigration status … [or] sex … to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof ….” (Executive Law § 296 [2] [a]). (emphasis added).
Pursuant to Title VII, an employer may not “fail or refuse to hire or [ ] discharge any individual, or otherwise [ ] discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Similarly, the NYSHRL provides that it is “an unlawful discriminatory practice” for an employer “to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment” on the basis of an individual’s “age, race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or status as a victim of domestic violence[.]” N.Y. Exec. Law § 296(1)(a).
Claims under Title VII and the NYSHRL “are generally treated as ‘analytically identical’ and [are often] addressed together.” Farmer v. Shake Shack Enters., LLC, 473 F.Supp.3d 309, 323 (S.D.N.Y. 2020). A plaintiff asserting a discrimination claim under either law must allege that (1) her employer discriminated against her (2) because of her membership in a protected class. See, e.g., Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 87–88 (2d Cir. 2015) (Title VII). In sum, it is a good policy for employers to review their paperwork and remain vigilant to avoid being caught up in the confusion as the Trump immigration polices play out.