If the Department of Homeland Security gets its way, employers will soon share a bigger part of the burden in the fight against illegal immigration. Here’s what HR needs to know.
First, some background:
In August of last year, the DHS issued new regulations clarifying the steps employers must take when they get a “no-match” letter from the Social Security Administration — a notice that the name and social security number provided by an employee don’t match up with the SSA’s database.
However, a federal court in California issued an injunction to keep the rule from going into effect.
Last week, the DHS revised its proposal by including additional information and asked the court to lift the ban. The rules themselves are the same as they were last year:
- When companies get a no-match letter, they have 30 days to check their own records and see if there’s a mistake on their part. If so, they need to send the SSA the corrected information and let them know the problem’s been solved.
- If there’s no error in the company’s paperwork, the firm must tell the employee about the notification. From that point, the employee has 90 days to clear up the problem with SSA.
- At the end of the 90-day period, the company has three days to complete a new I-9 form for the employee.
The DHS says if companies follow those guidelines, they won’t be charged with knowingly hiring unauthorized workers.
But if no corrective action is taken within 90 days, the company will be in violation of the law.
The court’s expected to reconsider the proposal soon. We’ll keep you posted.
Avoid bias claims
Another point HR needs to watch for: As one government agency wants companies to take a tougher stand on unauthorized workers, the courts are also ready to punish those who take it too far.
No-match letters on their own don’t prove that a worker is undocumented. Unless there’s other overwhelming evidence that an employee is breaking the law, employers should give workers the full amount of time allowed by the DHS to correct any mistakes.
Otherwise, the company is opening itself up to wrongful termination and discrimination suits.
