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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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