Illegal employees are legal ambiguity

by CalWatchdog Staff | October 1, 2010 6:48 am

Katy Grimes: As a former employer, I hired illegal immigrants – not deliberately, or knowingly, but because fraudulent identification was used. The law is ambiguous and confusing, and different lawyers give different legal advise.

Gubernatorial candidate Meg Whitman has found herself in the middle of a legal and moral conundrum because of federal immigration and employment laws.

As the HR Director for a large manufacturing company, we had seasonal employment needs and were hiring groups of workers throughout the year. We also used employment agencies on occasion to screen the employees, just as Whitman did with Nicki Diaz Santillian. It is the initial responsibility of the employment agency to verify the identification of the employee. But usually, I did the interview and hiring myself.

And just like Whitman, we eventually received letters from the Social Security administration stating that some employees’ Social Security numbers did not match the name(s) of the employees. The instructions on the letter are emphatic that the employer is not to assume that the employee is illegal, and not to take any legal action against the employee, but to instead have the employee contact the administration to verify the information.

When I received the first letter years ago, I contacted the Social Security administration to ask what I was required to do and what I should tell the employees. But no one would talk to me about the status of the employees. I contacted our labor attorney who said that if I terminated the employment of anyone because of the letter, I could be sued for discrimination. He told me to instead instruct the employee(s) to contact the Social Security administration and either reapply, or to clear up the mistake.

Interestingly, another attorney said that if the employee could not immediately produce valid identification, I was required by law to terminate  employment, or risk the INS coming down on the company like a ton of bricks.

Even after the Homeland Security administration created the employer E-Verify system, it rarely worked and I could not verify applicants.

It wasn’t until one employee who had a sketchy looking drivers license and social security card showed up, that I finally learned of a way to verify identification.  When the employee would not provide valid identification after four months of employment, I finally had to call INS to ask what to do. It turned out that the guy was wanted on four continents. A grateful INS agent gave me a secret phone number inside of the Social Security administration where I could provide the applicant’s or employee’s name and social security number, and they would tell me it either matched or to “tell the employee to go to their nearest Social Security office to reapply.”

Whitman and her husband took the correct legal steps from hiring through termination. Any employer, large or small has gone through this, and found themselves in a legal mess, through no fault of their own.

OCT. 1, 2010

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