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Mandatory use of E-Verify could bring new headaches for US companies

Marilyn Odendahl
August 14, 2013
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Indiana Lawyer Focus

The red hot economy of the 1990s demanded a steady supply of unskilled and semi-skilled labor, a demand that was often filled with undocumented workers. Cities across the Midwest openly welcomed these individuals. Companies, trying to feed an insatiable appetite for workers, were placing help-wanted ads in newspapers in other states.

What a difference a decade can make.

The September 2001 terrorist attacks and the stumbling economy, capped by the Great Recession, have dramatically changed the country’s attitude toward illegal immigrants. Calls for tightening the borders, denying government benefits and increasing deportations have replaced the conciliatory feelings.

brown-jenifer.jpg Brown

The Border Security, Economic Opportunity, and Immigration Modernization Act that passed the U.S. Senate in June responded to the public outcry to stop undocumented workers from getting jobs by including the mandate that all employers use the Employment Eligibility Verification system, commonly referred to as E-Verify.

E-Verify taps into the government database and gives immediate feedback on whether or not the name of the new hire matches the Social Security number he or she provided.

In political arenas, the Internet-based system is touted as a foolproof mechanism to bar illegal immigrants from working. Elected officials from Capitol Hill to city councils have been requiring businesses that land government contracts or receive tax incentives to use E-Verify.

Employment and immigration attorneys call the mechanism the best system currently available but, they noted, it is not infallible and problems for employers could grow if its use becomes mandatory.

Moreover, E-Verify does not address the larger problem: The U.S. is home to an estimated 10- to 15-million illegal immigrants and the current immigration system provides no pathway for these workers to be hired, especially for positions in the service sector.

“Until the government gets its act together to draft legislation that addresses the significant number of undocumented people, I think (employers) are stuck in the middle,” Jenifer Brown, partner at Ice Miller LLP, said. “The companies and industries that employ, albeit unknowingly, undocumented workers are doing so because they can’t find sufficient American workers to fill the unskilled and semi-skilled jobs.”

Unintended consequences

gresk-paul.jpg Gresk

At present, E-Verify is receiving mixed reviews from employers. Inaccurate outcomes, like not recording a name change, can result in the system questioning the employee’s immigration status.

A “tentative nonconfirmation” can then lead to an appeal which places the company in limbo, not knowing if the worker will be able to get authorization or if the hiring process will have to be started again.

If the employers find E-Verify to be a difficult system to navigate, or if the appeals process increases costs and adds time, employers might try to avoid the headaches by not hiring people who look foreign.

Jeffery Mallamad, partner at Barnes & Thornburg LLP, called this potential rise in discrimination an “unintended consequence.”

Pointing to the Immigration Reform and Control Act of 1986, attorney Paul Gresk doubted employers will turn to hiring all-white workforces. The previous immigration bill contained penalties for discrimination, and it is likely that any bill emerging from this Congress will also include methods to deter such actions.

More influential on employers’ hiring practices may be the quality of the immigrant workers, said Gresk, founding partner of Gresk & Singleton. In particular, Hispanic young men tend to be physically strong and highly motivated, he explained, and they are also very loyal to their employers, not hopping from job to job.

“Employers come to us all the time and say, ‘God, these are the best workers I’ve ever had,” Gresk said.

Extra help needed

In Elwood, Ind., Red Gold, Inc. adds roughly 600 seasonal workers to its 1,400 full-time workforce every summer when the tomatoes start to ripen. The company has relied on E-Verify for several years and, according to Tim Ingle, vice president of human resources, has found the system easy to use. It has not been costly and it has not made hiring difficult.

He attributed Red Gold’s positive experience to the company’s recruiting practices and ability to attract the same migrant workers year after year. People who are not legal are not going to go to a business that uses E-Verify, he said.

However, Ingle drew a distinction between Red Gold, which hires migrant labor to help with processing the tomatoes, and farms, which use a transient workforce to harvest fruits and vegetables.

Food safety and food security could become concerns if any immigration reform does not include a way for foreign workers to come and help pick crops. Similar to when Alabama and Georgia passed some of the toughest anti-immigration laws in the U.S., farmers in those states had trouble finding workers and crops rotted in the fields.

Ingle’s point echoed Brown’s reminder about the need for unskilled and semi-skilled workers.

mallamad-jeff.jpg Mallamad

Jackson Lewis LLP partner Amy Peck also called for reasonable laws that will allow employers to hire foreign workers. The government needs to enact a comprehensive strategy with reasonable legislation that businesses can follow.

“If the government strengthens E-Verify and clears up some of the concerns, I think that legislation could help, but we know that if you push a balloon in one part, it pops out in another,” Peck, who works in the firm’s Omaha office, said. “You can’t enforce your way out of an immigration problem.”

Shifting the burden

The Senate’s immigration reform bill gives the responsibility for securing the borders to the federal government, but interior enforcement is shifted to employers. Companies and businesses will bare the brunt of enforcing immigration laws and have more of the burden of ensuring their workforces are legal, Peck said.

Mandating the use of E-Verify is a key part of shifting the burden, she said. Also, the government will likely up the number of audits of I-9 forms and increase the monetary fines for violations.

On top of this, the government can use E-Verify to find aberrations in a company’s workforce that may indicate discrimination against foreign-born workers or willingness to hire undocumented workers.

E-Verify is a goldmine of information, Peck said. The government can look at the characteristics of a business’s employees in terms of citizenship status, social security numbers and names, and then run statistical analysis to find potential problems. This information could then be shared with other government agencies.

“Compliance is going to be the top objective for every savvy and intelligent company,” she said. “Before, it got pushed to the bottom of the pile. Now companies are forced to have strong policy and procedure that ensures they have a legal workforce.”

Overriding all of this is the fallacy that E-Verify will net illegal workers.

Peck pointed to one employer as an example. For more than 10 years, the company used E-Verify. But when the government did an I-9 audit, 60 percent of the workforce – more than 300 workers – was found to be undocumented.

Such a situation where a large swath of the employees is suddenly identified as illegal could be devastating to employers. Some might have to cut an entire shift or shut down operations altogether.

E-Verify is easy to evade through stealing or borrowing another person’s identity, Peck cautioned. It is not a fail-safe system.•

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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