In a fact sheet released April 30, the new administration’s DHS announced: “Effective immediately, ICE [Immigrations and Customs Enforcement] will focus its resources … on the criminal prosecution of employers who knowingly hire illegal workers.”

Of the 6,000 arrests made in 2008, only 135 were of employers — a ratio the DHS now feels is much too low.

Does this mean companies need to do anything differently? No — they should just continue rigorously following all hiring laws.

Nothing in the law is changing — just the way the law is enforced. According to the fact sheet, ICE use “all available civil and administrative tools, including fines and debarment, to penalize and deter illegal employment.”

The new rule applies to companies with contracts lasting more than 120 days, valued at more than $120,000 and involving work done in the United States.

Companies not already using E-Verify will have to:

• enroll in the program within 30 days of being awarded a federal contract
• start verifying all new hires within 90 days of enrollment
• verify existing employees who are assigned to work on the contract, and
• continue using E-Verify for the duration of the contract.

If the Department of Homeland Security gets its way, employers will soon share a bigger part of the burden in the fight against illegal immigration. Here’s what HR needs to know.

First, some background:

In August of last year, the DHS issued new regulations clarifying the steps employers must take when they get a “no-match” letter from the Social Security Administration — a notice that the name and social security number provided by an employee don’t match up with the SSA’s database.

However, a federal court in California issued an injunction to keep the rule from going into effect.

Last week, the DHS revised its proposal by including additional information and asked the court to lift the ban. The rules themselves are the same as they were last year:

• When companies get a no-match letter, they have 30 days to check their own records and see if there’s a mistake on their part. If so, they need to send the SSA the corrected information and let them know the problem’s been solved.
• If there’s no error in the company’s paperwork, the firm must tell the employee about the notification. From that point, the employee has 90 days to clear up the problem with SSA.
• At the end of the 90-day period, the company has three days to complete a new I-9 form for the employee.

The DHS says if companies follow those guidelines, they won’t be charged with knowingly hiring unauthorized workers.

But if no corrective action is taken within 90 days, the company will be in violation of the law.

The court’s expected to reconsider the proposal soon. We’ll keep you posted.

Avoid bias claims

Another point HR needs to watch for: As one government agency wants companies to take a tougher stand on unauthorized workers, the courts are also ready to punish those who take it too far.

No-match letters on their own don’t prove that a worker is undocumented. Unless there’s other overwhelming evidence that an employee is breaking the law, employers should give workers the full amount of time allowed by the DHS to correct any mistakes.

Otherwise, the company is opening itself up to wrongful termination and discrimination suits.

One concern with the federal system is the possibility that an undocumented worker may have stolen another person’s name and social security number. In those cases, the system won’t see any problem — it’ll just verify that the name and SSN match.

Will employers be held liable if such an employee is hired?

No, according to the DHS. Companies only get fined when they knowingly violate immigration laws, said Homeland Security Secretary Michael Chertoff in a recent presentation at the Brookings Institute.

If a company is raided and it turns out E-Verify was properly used, the company won’t be fined.

Said Chertoff: “If you operate in good faith, and you use that system, even if it turns out that someone has managed to gain the system by stealing a real identity, you’re not going to get fined or punished.”

This November, the DHS’s E-Verify program is scheduled to end unless Congress passes legislation to continue it.

Though a House of Representatives committee had previously shot down an amendment to extend funding for E-Verify, a different extension bill was recently introduced.

The bill, which extends the program for five years, was passed by the full House at the end of July. There’s no word yet on when the Senate will vote on its version of the bill.

The vote doesn’t mean lawmakers are happy with E-Verify, though.

The law would allow Congress to change the program at any time during those five years. And many legislators (including the bill’s author, Rep. Gabrielle Giffords, D-Arizona) have testified that the program should continue — but needs to be reformed to correct accuracy and security issues.

The facts:

The company received “no-match letters” — notice from the Social Security Administration that the social security number provided by an employee doesn’t match the number in the SSA database — for a group of union workers. The employees were given three days to get a new SS card with the correct number or prove that an application for a new card had been mailed. The employees who didn’t complete the task in time were fired. They sued, claiming the terminations violated their collective bargaining agreement.

The employer said:

The firings were justified because the letters — and the employees’ failure to apply for new cards in time — gave the company reason to believe the employees weren’t authorized to work in the U.S.

Who won the case?

Answer: The employees.

Why: “No match letters” aren’t always sent because an illegal worker’s using a phony SSN. Often, human error is to blame, the judge said.

Also, the court ruled giving the employees just three days to correct the discrepancy was unreasonable and violated the CBA. New rules proposed by the Department of Homeland Security last year, for example, would have given employees a full 90 days to correct SSN discrepancies.

Cite: Aramark Facility Services v. Service Employees International Union Local, 1877