More than a dozen 7-Eleven franchises took in more than $180 million in revenue by running a “modern-day plantation system,” prosecutors in New York charged on Monday, built on the unpaid labor of dozens of illegal immigrants hired using sham Social Security numbers.
Federal authorities seized 14 7-Eleven stores on Long Island and in Virginia, arresting nine owners and managers, and seized property, including five homes. They are investigating 40 other 7-Eleven franchises in New York City and elsewhere in one of the largest criminal immigrant employment investigations ever conducted by the Justice and Homeland Security Departments, officials said.
Through the scheme, the defendants, who as franchisees for the parent company were licensed to use 7-Eleven buildings, trademarks and Slurpee and hot dog machines, recruited more than 50 illegal immigrants and gave them identities stolen from American citizens, including children and dead people.
The employees worked for 100 hours a week but were paid for a fraction of that time, and were forced to live in substandard housing owned by the operators of the convenience stores, the authorities said.
During today’s webinar presentation of Identity and Eligibility Confirmation, a couple questions were asked to which I was pretty sure I knew the answer but wanted to do a little research to document my answer.
Question 1: If Section 3 of Form I-9 has already been completed (for a previous rehire or reverification of authorization, for instance), how do we document subsequent updates in Section 3?
According to the Handbook for Employers, Instructions for Completing Form I-9, published by US Citizenship and Immigration Services, in the situation where Section 3 of the Form I-9 has been previously completed (such as a rehire or a reverification of expired authorization), a new Form I-9 should be used. The employer should “write the employee’s name in Section 1 and complete Section 3 of the new Form I-9, retaining the new Form I-9 with the previously completed Form I-9.”
Also, note that if the Form I-9 is not the version currently in use, Section 3 must be completed on the current Form I-9 – not the older version previously completed by the employee. This will be particularly important in the next few months because the current form expired on 08/31/2012 but USCIS has instructed employers to continue using it until they release the new version. This means that when the new form is released, Section 3 must be completed on the new form rather than the one in your file.
Question 2: I’ve been told that you can’t staple documents to I-9s is that true?
There are several places in the Handbook and online resources that suggest that employers “attach” memos explaining changes to the Form I-9. I assume that “attach” would include staples. Also, on the page Avoiding Common Errors, USCIS includes the following tip for completing Form I-9: “Highlighting marks, hole punches and staples do not interfere with an authorized official’s ability to read the information on the form.”
This seems to suggest that it is okay to staple relevant documents to the Form I-9, so long as it does not interfere with the ability to read the information.
Thanks to all who joined the webinar today. Our full webinar schedule is available here.
Under the terms of the settlement agreement, the company has agreed to pay $6,800 in monetary relief to the injured party, which included back pay and interest, along with a $2,000 civil penalty. The company has also agreed to training by the Justice Department on the anti-discrimination provision and training by the Department of Homeland Security on proper E-Verify procedures. The case settled prior to the Justice Department filing a complaint in this matter.
Employers participating in E-Verify should be sure that they are following proper procedures in processing tentative non-confirmations.
The Social Security Administration and the Department of Homeland Security cannot assist employees in resolving erroneous non-confirmations if the employer fails to provide the employee with the appropriate E-Verify notice.
Non-confirmations are the exception (and erroneous non-confirmations even more so) so when they occur, employers should review the appropriate procedures to ensure compliance.
Imperative offers employers an electronic I-9 solution that integrates with E-Verify and gives step-by-step instructions when a tentative non-confirmation is received.
Those are the magic numbers Kevin Lashus, the Managing Partner of the Austin, Texas office of Jackson Lewis LLP, says employers need to know when processing Forms I-9.
In this interview, he also discusses employer responses to DREAM Act-lite, the Obama Administration’s recent action to allow young undocumented immigrants an opportunity to avoid deportation and obtain work permits.
Kevin will be hosting the Austin Human Resource Management Association’s September 20th Legal and Regulatory Roundtable.
Also, I’d be remiss if I didn’t mention that Imperative Information Group offers an electronic Form I-9 and E-Verify enhancement product that can take away some of the headaches Kevin mentions during the interview.
The recently passed law amending the Illinois Right to Privacy in the Workplace Act places statutory obligations on employers that use E-Verify. Effective January 1, 2010, Illinois employers now are required to complete an attestation at the time of E-Verify enrollment.
One would be hard-pressed to find someone unaware that the government is currently trying to pass a stimulus bill to help jump start our economy. However, finding someone fully aware of the specific details outlined in both versions of the bill (i.e. House and Senate versions) might prove more difficult.
The New York Times reported that the two versions of the stimulus overlap on “90-plus percent” of the issues. But after the Senate passes their version today, a conference committee will begin drafting a final version of the bill, making the necessary compromises on the other 10 percent of the issues.
It is in this 10 percent where employers and HR professionals can find a signicant difference between the two bills. The House version of the stimulus plan included the following stipulation:
SEC. 1114. REQUIRED PARTICIPATION IN E-VERIFY PROGRAM.
None of the funds made available in this Act may be used to enter into a contract with an entity that does not participate in the E-Verify program described in section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note).
This provision was removed from the Senate version of the bill, but it could be reinstated as compromises are discussed later this week.
E-Verify is the federal government’s program for verifying online new hires’ authorization to work in the US. President Obama has put on hold until May a Bush Administration Executive Order that would required all federal contractors to utilize the system.
According to the Washington Business Journal, the government has agreed to postpone the E-Verify requirement for federal contractors until May 21st. This is the second time the requirement has been postponed.
The regulation would require all contractors working on government projects to check the E-Verify system to determine if workers are legally eligible to work in the United States. The requirement was originally set to be enacted on January 15th, but then was pushed back to February 20th.
For more information about the E-Verify requirement, please read Mike’s original post regarding the details of the E-Verify system.
Under the Bush Administration, the U.S. Citizenship and Immigration Services (USCIS) revised the Form I-9 by amending the documents acceptable for verification of employment eligibility. The new form I-9 was to go into effect today (02/02/2009).
Apparently, in it’s review of all pending actions initiated by the outgoing administration, the Obama Administration has announced a delay in implementation of the new form until April 3rd. The public commenting period on the proposed change has been reopened until March 4th.
The most significant change to Form I-9 is the requirement that all documents presented during the I-9 verification process must be unexpired. Currently, certain documents, including U.S. passports or drivers’ licenses can be presented as proof of identity and/or work eligibility without regard of their expiration date.
The revised Form I-9 also eliminates Temporary Resident and older versions of Employment Authorization Cards (Forms I-688, I-688A, and I-688B) from the list of documents sufficient to establish both identity and employment authorization (referred to as “List A”), since these cards no longer are issued and any outstanding cards would have now expired.
To verify the accuracy of the information provided by a new hire when completing the Form I-9, Imperative offers a user-friendly interface into the Department of Homeland Security’s E-Verify system. Our interface dramatically improves the ease of use and functionality of the E-Verify system that was, after all, designed by government contractors.
On January 30th, the Mid-Cities HR Association in cooperation with the Fort Worth HR Management Association and North Texas SHRM, will present their second annual Employment Law Symposium titled “What You Need to Know Under the New Administration.” Imperative is a proud sponsor of this event again this year.
In this podcast, Mike interviews Michael Layman, the keynote speaker for the symposium. Michael is the Manager of Employment and Labor Legislation for the Society for Human Resources Management and he will be discussing the many federal public policy issues expected to impact human resources professionals in the coming year.
For more information about the Employment Law Symposium, please visit MCHRA’s website at www.mchra.org. During the podcast, Michael Layman refers to SHRM’s HR Voice webtools, so be sure to check those out!
Also note that during the month of January, Imperative is hosting the first Imperative Podcast Listener Contest. The winner of the contest will receive a new iPod nano. For details on how to enter, please click here.
We hope you enjoy the podcast!
Three ways to listen to the podcast:
1. You can listen using our java-enabled player at the top of this post.
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The transcript for this podcast follows:
Mike Coffey: Hello I’m Mike Coffey and you’re listening to The Imperative Podcast. Barack Obama will become the 44th President of the United States on January 20, 2009. This year will mark the first time in seventeen years that one political party has held control of the White House and both houses of Congress. Ten days after President Obama is sworn in, the Mid-Cities HR Association in cooperation with the Ft. Worth HR Management Association and North Texas SHRM will present their second annual law employment symposium titled “What You Need to Know Under the New Administration”. The symposium will be held at Lone Star Park in Grand Prairie on the afternoon of January 30 and topics covered will include the Employee Free Choice Act, the ADA Amendments Act, the new FMLA regulations, and HR compliance in the information age. Following those sessions there will be a seated dinner and our guest today, Michael Layman, will be the keynote speaker. Michael is the Manager of Employment and Labor Legislation for the Society for Human Resources Management and he’ll be discussing the many federal public policy issues expected to impact human resources professionals in the coming year. Michael thanks for joining us today on The Imperative Podcast.
Michael Layman: Thanks for having me Mike.
Mike: We’ve got a new administration coming in office on January 20, so when this symposium takes place on January 30, President Obama will have been in office for ten days. What do you think the single most pressing issue for HR professionals is gonna be with this new administration?
Michael: I appreciate you having me on Mike. I’m very excited to be down in Dallas coming up in a coming weeks and there just couldn’t be a better time for all of us to get together and talk about issues affecting the HR profession and employers generally. As you noted we will have had a new administration just newly settled on the day of the speech and while the national news and even more regional news are giving a great deal of coverage to stimulus packages and bailouts for certain segments of industry and certainly some of the combat operations abroad, there’s very little attention given to some of the issues that we’ll talk about and particularly in the labor law and HR/public policy areas the new administration and the new Congress have the potential to enact some really transformative, really dramatic changes in the workplace and by now most people are aware, certainly in the crowd that we’ll have on January 30, most people are aware of the Employee Free Choice Act. That certainly has a chance to transform the workplace by allowing unions to organize workplaces more easily. It’s the simplest way to describe the bill. But Congress obviously already got started on January 6 when actually they were sworn in. So they’ve already been at this for a few days and got a head start on the administration and the House of Representatives has already passed two sweeping, two very significant measures that intend to address pay discrimination. So along with the Employee Free Choice Act I would want to highlight the Ledbetter Fair Pay Act and the Paycheck Fairness Act. These are two bills that again, purport to address wage inequity between different classes of employees and they may have a great effect on how HR professionals do their jobs.
Mike: Okay then let’s start with those pay discrimination acts. The Supreme Court said in the Ledbetter decision that under current law an employee claiming pay discrimination must file a complaint within 180 days of the discriminatory action by the employer. I take it that the Ledbetter Fair Pay Act is an effort to make it easier for employees to file claims long after a potential discriminatory decision is made?
Michael: Yeah that’s right Mike. In May 2007 the US Supreme Court in the Ledbetter v Goodyear decision effectively held that the time limit for filing a charge under Title VII of the Civil Rights Act starts after the alleged unlawful employment action. But the time clock does not restart upon the receipt of each successive paycheck, each paycheck that an employee receives. So what this Ledbetter bill would do is effectively reverse that and say instead every time an employee receives a paycheck he or she will have a new 180 or actually 300 days depending upon which state you live in. You will have a new period to file a claim against your employer. But the bill goes further than that. The bill would also apply to pension payments. So conceivably an employee could work at a company and leave that company for other employment and his or her time clock would run out for filing a claim. But then upon receiving a retirement benefit of some sort at say age 65, that employee’s time clock for filing a claim would restart and you can certainly see that that has the potential to keep employers liable for decisions years and even decades down the road when there may be no witnesses available, there may be no records available. The statute of limitations in any area of criminal or civil law is very important in encouraging claims to surface so that cases can be properly adjudicated. The final aspect of the Ledbetter bill is that it would also allow family members and others affected by a discrimination to file a claim. So it really would expand the pool of potential plaintiffs under the act and would have a vast new application in employment law.
Mike: Okay so we’re all opposed to discrimination. That’s what the professionalization of human resources over the last 30 years has really accomplished in many cases. But I take it that the Ledbetter Fair Pay Act will expose employers to claims long after a possible discriminatory action has taken place especially where those actions weren’t intentional by an employer but perhaps they were institutional or just unintended consequences of an employer’s policy.
Michael: Well that’s true Mike and by institution what’s known as the paycheck rule where each paycheck would restart the time clock, everything gets fuzzier about when discrimination occurred and how employers can be liable for previous decisions. But if one employee’s pay is lower than another or vis-à-vis other colleagues, an employer can have significant liability under the Ledbetter bill for the first time because of the way the statute of limitations would be held open and paychecks would be scrutinized more closely; so certainly a big, big deal to HR professionals and all these reasons and the essence of SHRM’s opposition to the Ledbetter bill.
Mike: Did SHRM have an alternative solution to the problem that the Ledbetter ruling pointed out? I mean, I think a lot of people probably agree that the Ledbetter ruling was trying to remedy maybe a legitimate issue and maybe Congress has gone too far in the other direction. Is there a happy medium that HR professionals should be supporting?
Michael: Well you said it earlier Mike when you said that certainly SHRM and HR professionals and everyone is opposed to unlawful discrimination in the workplace. SHRM and its members have a long history of preventing discrimination and just have a tremendous record in that area. But we’ve opposed these two bills, the Ledbetter and the Paycheck bills, based on the way they were written and the approaches that they take. You asked about alternatives to the Ledbetter bill. There are a number of ideas that we have discussed and I think reasonable people could discuss to think about ways to allow aggrieved employees to be able to seek redress when they are discriminated against in the workplace. But on day number three of the new Congress with no hearings or much discussion of any kind the House of Representatives already passed both of these bills and didn’t consider any alternative to the bills as they were written and as they were considered in the previous Congress over the past two years. So there’s been very little opportunity to influence the process to this point although we’re hopeful that things will slow down. But SHRM will continue to work with members of Congress and their staffs and we’ll be listening to our members on instances like the presentation on January 30 in Dallas when we’ll take our message to our friends and members in Dallas and hear what our friends have to say and it’s those times when we can really get good give and take and take ideas back to Washington and try to have an influence in the process.
Mike: Well we talked about Ledbetter. What exactly does the Paycheck Fairness Act do?
Michael: Sure, the Paycheck bill is probably even more dramatic in the way that it would affect specifically the Equal Pay Act. The Ledbetter bill actually affects a number of employment laws, the Civil Rights At, the Age Discrimination in Employment Act, the ADA, and the Rehabilitation Act. So in effect, Ledbetter would affect all those employment protected classes. The Paycheck Fairness Act zeroes in on the Equal Pay Act. Equal Pay Act obviously requires that jobs requiring comparable functions and skills and responsibility must compensate equally and what the Paycheck Fairness Act would do really are a number of sort of unrelated things but I’ll just go through them. The Paycheck Fairness Act would change the dynamics of how class actions occur under the Equal Pay Act. Right now an individual must give his or her written consent to join a class action. But the Paycheck Fairness Act would require that employees opt out of any gender discrimination class action. So this would just have a very significant effect in increasing the number of plaintiffs in class actions. You’d be forcing employees to take the affirmative step of opting out of a class action as opposed to opting in under current law. The other primary thing the Paycheck Fairness Act, it would create unlimited punitive and compensatory damage awards under the Equal Pay Act for which employers would be liable and that’s on top of current liability for back pay. So the combination of the class action dynamic and then lifting, or excuse me, just creating an unlimited damage awards would be potentially devastating for employers and certainly one would have to believe that that combination would encourage more employers to settle cases even in instances where no intentional discrimination occurred. One other note about the Paycheck bill is there is some complex language. It would make it significantly more difficult for an employer to use legitimate factors such as education, training, and experience are three that I’ll name as a component of its pay system. It really restricts what an employer can base its pay system off of and may have the effect of really prohibiting the employer’s use of a locality pay as well as prior salary history in basing compensation for current employees. So the Ledbetter bill would have a dramatic effect on the statute of limitations in the Civil Rights Act but the Paycheck Fairness Act really opens up opportunities for plaintiffs to challenge their employers’ pay decision.
Mike: Can you help me understand better how the Paycheck Fairness Act will limit employers’ flexibility in deciding what to pay employees?
Michael: Under the Equal Pay Act there are three identified basically bona fide reasons for paying employees different wages. Those three areas are I believe seniority, merit, and production. Then there’s a fourth prong in the Equal Pay Act that is effectively a catch-all that says many other factors can be considered but with the exception of sex. What the Paycheck Fairness Act would do is really, really tighten up that fourth prong, that catch-all prong and limit it to – well really limit it. the bill actually names education, training, ability, and experience as legitimate factors to base a pay system on but then there’s a very high, almost an ADA like standard, that employers must affirmatively prove to justify using training or using experience as a foundation of its pay system. Because of this high standard the use of locality pay may be really restricted and thus an employer would have a hard time justifying that the reason they pay an employee in Midland, Texas different than they do an employee at their Lower Manhattan branch, it’s just going to be much more difficult to justify pay decisions and compensation when an employer has employees in vastly different parts of the country.
Mike: Wow both of these sound like bills that HR professionals need to be heard on. I know SHRM has some really useful tools on their website for identifying and communicating with our representatives and senators.
Michael: That’s right and we appreciate every time our members engage legislators through our HR Voice program and through other means. Our SHRM strength is the quality of its members and the fact that we have 250,000 members largely across the US. We can have and we have had a significant effect on influencing all sorts of past legislation and it’s only more important here n the new administration and the new Congress in 2009 with so many potential landmark bills on the docket.
Mike: Immigration’s been a hot topic for a number of years now and last year President Bush signed the executive order requiring that federal contractors begin using E-Verify and then on just this past Friday, largely in response to a SHRM lawsuit, SHRM and several other organizations, a suit against that order, the Department of Justice delayed that until February 20. What do you think is going to happen in the next year related to E-Verify and immigration in general?
Michael: Well that’s right Mike. We appreciate that plug for some of SHRM’s efforts in the employment verification arena with you mentioning the delay to federal contractor rule. The other sort of short term item on the immigration front is that the federal government’s employment verification system that’s known as E-Verify and other’s may know it better as Basic Pilot, that system actually has been extended, was extended last fall by Congress but will now expire in March 2009 here unless a change is made. So Congress will have to consider whether they want to kick the can down the road once more with E-Verify and extend it in its current voluntary form or there are a number of proposals out there to do all sorts of things with E-Verify. One prominent proposal would make E-Verify mandatory for all US employers over a phased in timeline. SHRM has a proposal that would create a new electronic employment verification system that we think would be easier for HR professionals to use. It would be more reliable. It would be more secure for employees’ identity and would just go a long way in helping to secure a legal workforce. The E-Verify program is only used by about 1% of employers nationwide on a voluntary basis and we’re concerned about its error rate. I mean, a program like E-Verify is almost useless if it doesn’t have 100% accuracy rate and if there’s any threat of error it becomes very problematic. So SHRM is very interested in this arena. I think something to point out that immigration reform is such a third rail of American politics, it’s just almost too hot to touch for any politician that it’s likely – I think it’s reasonable that the Obama administration may not be interested in digging too deeply into immigration reform too early in their term here. There are certainly a number of other issues facing the country. They can probably try to gain some momentum through some legislative victories on some other fronts before tackling immigration reform which has just proved to be so difficult to find a sweet spot where you can pass any bill through Congress. So we’ll see. But immigration reform, I think we view immigration reform as more of a longer term item on the legislative agenda.
Mike: I know you’re going to talk about a lot of these issues during the Employment Law Symposium but I don’t want to get away without talking about the Employee Free Choice Act. Every chance we get we’re sounding the drum to all our HR colleagues about that. Can you tell us what your take on the chances of the Employee Free Choice Act passing in this session of Congress are and what you think the impact to employers would be if it were to pass?
Michael: Sure Mike. Based on the election and the pending legal challenge in Minnesota, Democrats and Democratic leaning Independents in the Senate may have 58 or 59 senators for the 111th Congress here and the Senate is really where the playing field for the Employee Free Choice Act will be played out. The Senate will frankly be the key playing field for a number of these issues we’ll be talking about on the 30th just because it’s so easy to pass bills through the House. It only takes a majority vote. There’s a number of other procedural mechanisms that the minority can use to protect itself in the Senate and things tend to take longer there and as a result we certainly hope the Senate is more contemplative. So the Employee Free Choice Act, as other bills need, would need 60 votes to defeat a filibuster over there in the Senate. So the Senate would be right on 59 Democrats and there was one Republican who voted in favor of cloture last year. So conceivably if everyone votes the same way, proponents of the Employee Free Choice Act would have enough votes to defeat a filibuster this year and proceed to consideration of the bill. Who knows what’s going to happen from there and if the bill will look identical when it’s brought up this year as it was considered in the previous Congress. The bill has not been introduced to press time here so it remains to be seen what the proponents’ strategy will be. But certainly this is the number one priority of organized labor. This is why organized labor threw so many millions of dollars into the election. This is what they want. So it’s likely that some form of the bill will become law in 2009 or 2010 potentially and SHRM will be continuing to aggressively engage that debate to ensure the HR perspective is shared there.
Mike: For those who aren’t aware the Employee Free Choice Act basically takes away the secret ballot process from the union vote in a company. So if you get 50% plus one of the employees who sign what we traditionally have considered interest cards in a union then you’ve got a union and I’m wondering have you heard what the arguments for that are? It just seems odd to me that the United States Senate would support something that takes away what we all consider a fundamental right, to vote our consciences without intimidation or coercion. What are the arguments for that?
Michael: Sure Mike. What I think is the most common response that we hear when we’re making our case with legislators and their staff is that some proponents of the bill are simply very concerned about wage inequity issues in the country. Proponents of the bill will highlight that the rich are getting richer and the poor are getting left behind and they view the Employee Free Choice Act as perhaps a means to an end to address that. There’s been a lot of talk about unions and their impact in employees’ lives and on the marketplace through the discussion of a financial rescue for the automakers in recent week and that has highlighted a lot of what unions can offer and what they mean to an employer in an employment setting. That’s had an effect that is yet to be determined on the Employee Free Choice Act because there’s renewed interest in union issues and the fact that union membership has declined so steadily for almost half a century. Many proponents of the bill on Capitol Hill see the Employee Free Choice Act as a way to reverse the decline in union membership and therefore increase the living standards of the middle class and these are the arguments we’re hearing in favor of the bill. We continue to argue that the Employee Free Choice Act is a lousy means to those potentially admirable ends and I will be happy to discuss that at further length on January 30 with everyone.
Mike: Michael, thank you for your time today and I’m looking forward to meeting you face to face on January 30.
Michael: Thanks a lot Mike, looking forward to seeing you in Dallas.
Mike: Michael Layman will be the keynote speaker at the Mid-Cities HR Association’s January 30 Employment Law Symposium. This is an event you don’t want to miss and you can register by visiting their website at MCHRA.org and thanks for listening to The Imperative Podcast. Hey, in January, we’ll be giving away an IPod nano to a lucky listener. To enter the contest, just go to our website that’s ImperativeInfo.com and click on the listener contest graphic. To enter the contest you’ll need an entry code so here it is: MCHRA (Mid-Cities HR Association). Just type “MCHRA” in the entry code box and you’ll be entered in the contest to win an IPod nano. The winner will be announced on February 2 so be sure to enter soon. While you’re on our website you can hear all of our previous podcasts or read our HR related blog items. You can also learn more about background checks and the other services we offer. Finally, in today’s economic climate it is critical to get every hiring decision right. Do you really have the time or budget to recruit, hire, train, manage, and then terminate a bad hire? A good background check needs to be a critical piece of your employee selection process. If you don’t absolutely love your current background screening partner, please give me a call. I’m Mike Coffey at 877-473-2287 or visit us online at ImperativeInfo.com. Thanks and have a great 2009.
According to the Washington Business Journal, the Department of Homeland Security has postponed the requirement that federal contractors begin using E-Verify by January 15th. Responding to a suit filed by SHRM and other organizations, DHS agreed to delay the requirement for federal contractors until 2/20/2009.
Read more about the E-Verify requirements here.