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Worksite Enforcement. discussion leader. Elise A. Fialkowski, Esq. Overview - Brave New World for Employers. New government enforcement priorities and techniques; Penalties for non-compliance, including criminal liability; Impact of State and local laws; Social security no-match letters;

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Presentation Transcript
slide1

Worksite Enforcement

discussion leader

Elise A. Fialkowski, Esq.

overview brave new world for employers
Overview - Brave New World for Employers
  • New government enforcement priorities and techniques;
  • Penalties for non-compliance, including criminal liability;
  • Impact of State and local laws;
  • Social security no-match letters;
  • Choosing whether to participate in voluntary government programs (E-Verify, IMAGE).
ice enforcement strategy
ICE Enforcement Strategy
  • Recent ICE enforcement initiatives—audit v. raid
  • Increased civil fines coupled with criminal penalties
  • ICE has the authority to use wiretaps
  • ICE has the authority to establish and operate undercover investigations
  • ICE utilizes confidential informants
  • ICE coordinates with IRS, DOL and other agencies
impact of state and local laws
Impact of State and Local Laws
  • As of December 31, 2007, at least 1562 pieces of legislation related to immigrants had been introduced among the 50 state legislatures – of the 240 that became law – 29 effect employment in approximately 20 states.
  • Companies that knowingly hire illegal workers may face:
    • Possible loss of business licenses – Arizona, Tennessee, West Virginia
    • Possible loss of government grants and contracts – Arkansas, Colorado, Delaware, Georgia, Idaho, Iowa, Massachusetts, Minnesota, Oklahoma, Pennsylvania, Tennessee, Texas
  • Some states require E-Verify while Illinois prohibits it.
no match regulations
“No-Match” Regulations
  • DHS/ICE issued regulations on August 15, 2007 to be effective September 14, 2007—constructive knowledge receipt of Social Security no match letter or Written notice from DHS
  • Prior to effective date, the U.S.D.C. for the Northern District of California enjoined the implementation
  • On March 21, 2008 - DHS Supplemental Proposed Rule
  • On March 24, 2008 the Office of Special Counsel issued Antidiscrimination Guidance
social security no match regulation
Social Security “No Match” Regulation
  • “Reasonable steps” to rebut constructive knowledge presumption (“safe harbor”)
    • Within 30 days: employer check/correct records and inform SSA/DHS
    • Within 90 days: if employer records correct, request employee confirmation
      • If employee corrects record, employer correct and inform SSA
      • If employee states employer records correct, employee must resolve discrepancy with SSA within 90 days
social security no match regulation1
Social Security “No Match” Regulation
  • If unresolved after 90 days, new I-9 must be completed by the 93rd day.
    • Employer cannot accept the following:
      • Any document referenced in written notice
      • Any document with disputed social security or alien number
      • Any receipt for replacement of such document
    • Employee must present a document with a photograph
  • If not, terminate

(cont’d)

choosing whether to participate in voluntary government programs
Choosing Whether to Participate in Voluntary Government Programs
  • E-Verify
    • Checks social security number against national databases-SSA & DHS
    • New photo screening tool
    • Voluntary program (at least on federal level at this time)
    • Requires Employer to agree to MOU with DHS and SSA w/significant obligations
e verify memorandum of understanding
E-Verify Memorandum Of Understanding
  • Main Employer Responsibilities
    • Post notices
    • Agree to visits by ICE and/or designees
    • Attach results to Form I-9 and retain for same time as form
    • Rebuttable presumption of compliance if confirmation is obtained
    • Notify DHS if continues to employ following non-confirmation (civil penalties $500-$1,000 for failure to notify)
    • If continued employment after Final Non-Confirmation a rebuttable presumption of violation of INA § 274A(a)(1)(A) is created
general guidelines for e verify
General Guidelines for E-Verify
  • Not a substitute for I-9 compliance
  • Does not provide protection against worksite enforcement
  • Cannot be used to pre-screen
  • Can only be used to verify eligibility of newly hired employees
  • Queries must be conducted within 3 days after hire
  • You can leave the E-Verify program only after 30 days notice
guidelines for e verify
Guidelines for E-Verify

(cont’d)

  • What you need:
    • Information from Section 1 and 2 from the Form I-9
      • Employees name
      • Date of Birth
      • Social Security Number
      • Citizenship Status employee attest to
      • A# or I-94 # if applicable
      • Expiration dates for identification and eligibility documents
    • Identification document provided from List “B” must contain a photograph
results
Results
  • Confirmation – GREEN LIGHT
    • Record the case verification number of Form I-9 or attach printout of result screen.
    • This ends the process - Obligation to re-verify remains for time limited authorizations.
  • Final Non-Confirmation – RED LIGHT
    • Record the case verification number of Form I-9 or attach printout of result screen
results1
Results

(cont’d)

  • Tentative Non-Confirmation – YELLOW LIGHT
    • System cannot perform immediate match
    • NOT grounds for termination
    • Follow up steps:
      • Double check input date to ensure no errors (if errors are found run SSA query again)
      • Record case verification number
      • Inform employee of tentative non-confirmation
results2
Results

(cont’d)

  • Inform employee he/she has the right to contest non-confirmation with SSA or DHS
  • If employee does not contest – YOU MUST TERMINATE EMPLOYMENT
  • If employee contests –must provide with a referral letter to SSA or refer to contact DHS. Employee has 8 Federal Working Days to resolve discrepancy with SSA/DHS (unless SSA/DHS extends)
  • On the date that is 10 Federal Working Days after the date of the referral you must query the system again.
advantages of using e verify
Advantages of Using E-Verify
  • Rebuttable presumption of compliance if confirmation is obtained—Swift
  • Allows employer to query system re validity of documentation
  • For employers with higher percentage of undocumented workers or greater use of fraudulent documents, saves time/training by identifying unauthorized workers prior to no-match
disadvantages of using e verify
Disadvantages of Using E-Verify
  • Significant problems with underlying databases
  • Potential waiver of 4th Amendment protections
  • Limited to new hires
  • No safe harbor from worksite enforcement
  • SSA may not extend 8-day resolution period
  • No formal appeals process
  • Continued employment after final non-confirmation results in rebuttable presumption of violation
disadvantages of using e verify1
Disadvantages of Using E-Verify

(cont’d)

  • Penalty of $500 to $1000 for each failure to notify of continued employment after final non-confirmation
  • Insufficient protection from discrimination claims
  • Value/impact of new photo tool questionable
  • 30 day notification period to withdraw
  • Issue as to whether system can handle increased volume
  • Add’l HR and company time for process in addition to I-9
image choosing whether to participate in voluntary government program
IMAGE-Choosing Whether to participate in Voluntary Government Program
  • ICE Mutual Agreement between Government and Employers (“IMAGE”)(www.ice.gov/partner/opaimage)
      • I-9 audit by ICE
      • Verify social security numbers of existing workforce
      • ICE training and education
      • Commit to ICE “best practices”
      • Establish “tip line” to ICE
      • Does not ensure against raid, investigation, fine or criminal action
speaker contact information
Speaker Contact Information
  • H. Ronald Klasko, Esq.
    • Tele: 215.825.8608
    • Fax: 215.825.8699
    • E-mail:rklasko@klaskolaw.com
  • Richard R. Rulon, Esq.
    • Tele: 215.825.8612
    • Fax: 215.825.8699
    • E-mail:rrulon@klaskolaw.com
  • William A. Stock, Esq.
    • Tele: 215.825.8607
    • Fax: 215.825.8699
    • E-mail:wstock@klaskolaw.com
  • Suzanne B. Seltzer, Esq.
    • Tele: 212.796.8846
    • Fax: 212.297.1799
    • E-mail:sseltzer@klaskolaw.com

cont’d…

speaker contact information1
Speaker Contact Information
  • Elise A. Fialkowski, Esq.
    • Tele: 215.825.8647
    • Fax: 215.825.8699
    • E-mail:efialkowski@klaskolaw.com
  • Theodore J. Murphy, Esq.
    • Tele: 215.825.8646
    • Fax: 215.825.8699
    • E-mail:tmurphy@klaskolaw.com

Visit us online at www.klaskolaw.com