If the company relies heavily on immigrant labor, he is occupying that unenviable space that is situated between a rock and a hard place.
On one hand, he must be careful not to hire someone not legally authorized to work in the United States. But he must also be careful not to put the wrong questions to the immigrant he is considering for a job. Nor can he can turn away an immigrant job candidate whose legal work status he doesn’t feel right about.
“One branch goes after folks who hire illegal aliens and don’t follow procedures,” he said. “The other part goes after people who do too much to avoid hiring illegal aliens.”
“Literally, the government has you in a vice,” he said, bemoaning what he says is a “war on common sense” that has been “going on for decades.”
Crutcher says it’s mostly myth that many employers in Mississippi and elsewhere are hiring immigrants they know are in the country illegally.
You can suspect the job prospect is here illegally but if the photo ID or other E-Verify documents he presents appear valid, you put your company in jeopardy by rejecting him, Crutcher noted.
“If they give you that (required ID) you can’t subject the prospective employee to further investigation. And you can’t refuse to hire.”
Such refusals can get you into hot water with the Department of Homeland Security’s Office of Special Counsel, Crutcher warned.
Further caution is also in order in dealing with a new employee whose E-Verify identification documents come back as a non-match. “Firing an employee solely on the basis of a no-match letter may open you up to a discrimination lawsuit,” the U.S. Small Business Administration warns on its web site.
“At the same time, if you do not follow up on a no-match letter in a timely manner, you may be cited for knowingly employing an unauthorized worker, which is a violation of federal law.”
So, how do you act on a no-match letter while protecting yourself from legal action from both an employee and the federal government?
Sorry — can’t help you there, the SBA says.
“Current regulations do not provide procedures that help protect an employer from allegations that he knowingly employed unauthorized workers,” the agency advises.
The SBA says U.S. Immigration and Customs Enforcement has proposed new rules that specify “safe harbor” procedures that an employer should follow when receiving a no-match letter. However, “these new rules do not necessarily protect the employer from allegations of discrimination,” the SBA cautions.
Meanwhile, the land mines the company hiring officer must navigate don’t stop there.
Under Mississippi’s Employment Protection Act, a fired worker can sue an employer for letting him go while retaining an employee whom the employer suspected to be illegal. Claiming the illegal employee provided valid immigrant documents and received federal E-Verify clearance won’t necessarily get the employer off the hook, according to Balch & Bingham’s Crutcher.
The state law presents a civil liability to Mississippi employers, Crutcher said, but added the late June U.S. Supreme Court ruling on Arizona’s immigration law may have provided some new protection.
“Federal law, as interpreted in the recent Arizona decision, probably forbids a state to coerce employers to do more than the federally required document check, no matter how foreign an employee or applicant looks or sounds,” he said.