The new form contains two fields in Section 1 that are voluntary, although this is not apparent from the form itself.  Specifically, an employee’s telephone number and email address are not required when completing Section 1.

Starting today, employers should also use the new version of the form when reverifying the employment eligibility of someone who completed a prior version of the form.  It is not necessary to use the new version of the form to record a rehire if the individual previously was hired less than three (3) years ago and their prior I-9 documentation remains valid at the time of rehire.

There are two boxes on the new form containing bar code information.  Although the purpose of these remains a mystery, employers are instructed not to write in these boxes.

United States Citizenship and Immigration Services also has confirmed that an entire set of instructions must be given to each new hire prior to completion of the new I-9 form.  We recommend that employers prepare a laminated version of the instructions to provide to each new hire when completing the form.  Employers using electronic I-9 software also should ensure that an entire set of instructions is available to each new hire.

Our law defines an “alien” as someone who is not a citizen or national of the United States.  Through a careful system of laws and regulations dating back over a century now, aliens who come to the US must have legal authority to do so.  Moreover, their right to stay in the US is carefully circumscribed by law and monitored by no less than three separate federal agencies.  If you enter the US without authorization, that is against the law – i.e., it is illegal.  Similarly, if you enter the US legally, but stay beyond your legal right to be here, that too is against the law.  In both cases, you are here illegally and you are an alien.  Thus, the perfectly proper term to describe you is “illegal alien.” 

The Lords Of Style, Education, Respect, and Symantics maintain that no person is illegal.  I suppose that such is true – at least as far as it goes.  While it is probably true that it simply cannot be illegal merely to exist, where one exists and under what circumstances plainly can be governed.  The fact that one is permitted to exist does not negate the fact that laws properly regulate the right to be in this country.  If you came here without authorization and/or you stayed here longer than allowed, you are here illegally.  If, by definition, you are an alien, then you are an illegal one.

Note also the fallacy of the current politically correct term.  To suggest that the illegal alien is simply legal but undocumented misses a fundamental point.  These aliens do not live in a vacuum.  Instead, they live here, working side-by-side with legal residents and citizens, although by and large, they don’t pay taxes and try to avoid detection.  The Lords Of Style, Education, Respect, and Symantics are not only unaware of how our immigration law works, but also they forget that each and every one of those illegal workers presented documents that presumably appeared to be “genuine on their face” (whatever that means; stay tuned for more on this) in order to complete the I-9 form and start work.  Therefore, they cannot practically be “undocumented”  — at best, they can only be “falsely documented” workers.  Ah, but therein lies the problem, because “falsely” documented suggests (absolutely) correctly that there is something wrong.

There error lies in the nomenclature.  Let’s ‘fess up.  There is no such thing as Undocumented Workers.  They are Illegal Aliens.  Although perhaps not yet arrested, charged, convicted, and sentenced, their behavior – indeed, their very presence in this country — is criminal.

First, a little background. I am an attorney, lawyer, counselor, advisor, etc. Been doing this for over 25 years. Most of my career has been spent in Labor & Employment law firms “practicing” basic employment compliance, fighting government enforcement, defending companies, and growing business immigration practices. I have also been responsible for the growth, deployment, and maintenance of three ancillary business focusing on Human Resources products and/or services. Today, I practice law with a wonderful firm – Miller & Martin PLLC – in their Atlanta office. But enough about me . . .

We strive to bring you timely and relevant content. It will focus upon employment law generally, but may occasionally stray into what he hope are relevant, and maybe even related, topics. Please note that we are not offering legal advice. If you need that, go see a lawyer. The opinions expressed here are those of the authors alone and not those of Miller & Martin or any other entity. Okay, now let’s get into it . . .

Several weeks ago, the high court in Nebraska issued an opinion stating that illegal aliens were entitled to receive worker compensation benefits. Specifically, the Nebraska Supreme Court held that illegal aliens qualify for permanent total disability benefits. This is downright crazy. As my good friend Phil used to say, it is STUPED.

The Court’s rationale is that workers need to be compensated if they are injured, and aliens are not exception to the rule. Arguing that employers must not have a disincentive to provide a safe workplace, the decision finds that illegal aliens are worthy of compensation necessary to return them to the workplace – even though they are legally not eligible to return to that workplace. Although the Court’s public policy goals – encouraging a safe workplace and an early return to work – are laudable, this decision turns logic on its head. The effect of this decision is to create an incentive for illegal aliens to stay in this country. Indeed, they now have an incentive – at least in Nebraska — to fall down the stairs on the job so they can stay here and collect money for not working. Even if a foreign illegal worker is injured here and returns home, the comparative standard of living means that such a worker will live like a prince at home, at a level far above the normal standard of living.

Would it not be better policy to deport the illegal worker? We could still award worker compensation benefits. But let’s award the equivalent compensation taking into account the relative standard of living in the illegal worker’s native country, so there is no windfall to the illegal worker. This will award fair compensation, create an incentive for the worker to return to the workplace (in the native country, of course), and not create incentives for illegal workers to come here and get hurt on the job. By requiring some compensation, employers will still have an incentive to provide a safe workplace and will not be able to exploit illegal workers who get injured on the job.

The outline of immigration reform announced by Sen. Marco Rubio includes provisions that would provide a pathway to legalization, but the journey to permanent residence and ultimately citizenship will face a massive hurdle.  This is so because the so-called “Gang of Eight” proposal requires proof that our borders are secure before the estimated 11 million illegal aliens already present in the US can move from a temporary, employment authorized quasi-legal status to get in line for a green card.  The Gang of Eight proposal would increase worksite enforcement efforts and penalties imposed upon employers found to have employed illegal workers.  This will probably mean a substantial expansion of the current E-Verify program coupled with efforts to make it more secure and accurate, as well as a better tool to combat identity theft.

Although Pres. Obama’s recent speech on immigration reform did not go into very much detail, a White House press release amplifies upon the Administration’s proposals.  These too would require increasing worksite enforcement as well as increases in the penalties levied against employers found to have violated the law.

Although both proposals also suggest substantial reforms to the systems for legal immigration, it remains to be seen how much employers will actually benefit from final legislation.  In 2007, when the last major immigration reform was undertaken, employers by and large sat on the sidelines.  As a result, the immigration debate did not fairly consider employers’ viewpoint.  Today, employers need to get more involved in the legislative process and make their representatives aware of the need for skilled workers as well as unskilled labor in order to better compete in today’s global marketplace.

Over the last decade, a number of employment cases have reached the United States Supreme Court claiming retaliation against employees.  These plaintiffs had previously claimed violations of wage and hour, Title VII, age discrimination and various civil rights laws which apply to the workplace.  The same Court that has made it more difficult for employment plaintiffs to maintain claims of workplace discrimination has been very expansive of the rights of employees who complain of retaliation.

The most recent case decided by the Court earlier this year resulted in a unanimous decision with an opinion written by one of the most conservative Justices (Scalia).  In Johnson v. North American Stainless, the plaintiff had not complained of workplace illegality in any form.  His fiancé had done so.  However, three weeks after a sex discrimination claim was filed by his fiancé, Johnson was fired.  Lower courts held that Title VII did not cover alleged retaliation against someone who was merely associated with an employee who complained.  Unexpectedly, the United States Supreme Court found that Title VII protects employees if retaliation is based on their association with someone who complains of illegal discrimination.

In fact, employees are making significantly more claims under the retaliation theory.  A record number of retaliation claims were filed with the EEOC in 2010, roughly 50% more than in 2000.

Employers must be vigilant to assure that adverse employment actions are completely unrelated to the claims employees might have made for wage and hour, discrimination or any other allegation of legal impropriety in the workplace.  Due diligence requires an employer to routinely inquire about the employee’s possible participation in any form of whistleblowing before a negative employment decision is made or communicated.

Whistleblowers are not immunized from termination decisions.  However, the scrutiny placed on employer actions taken against employees who have complained previously about legal concerns is significantly greater than other employment claims.

Be certain the evidence justifying termination is totally independent of any legal claim previously made before taking adverse action against employees who complain, participate in or are associated with employees who raise legal complaints in the workplace.  Be careful to avoid taking action against employees only after they have complained.  Defensible terminations are supported by well-developed documentation which follows the employer’s procedures, precedents and practices leaving no question about the employer’s legal business related motivations.

So, beware.  The DOL has just made it easier for employees to build their case, especially if they can legitimately argue that your recordkeeping system is not trustworthy.  While the DOL does not indicate how it can determine whether what an employee enters on either the app or the printable time sheet is accurate or dependable, remember that it is the employer that has the burden of proof.  Not only is it the employer’s responsibility to keep accurate records, it should also be your goal.  Being able to show that employees follow your recordkeeping procedures, that there is limited access to time records with a limited number of users who can make adjustments to these records, and that any and all changes can be and are tracked is essential to defending a claim by an employee that he has worked more hours than he has been paid.  Even with all that, it will be telling to see how this new technology comes into play when there is a disparity between an employers records and the information contained on his phone. 

By Karen Smith, Member
Miller & Martin PLLC
ksmith@millermartin.com | (423) 785-8209

Although over 600 employees of Howard Industries proved to be illegal, they all presented documentation which federal prosecutors claimed were clearly fraudulent and should not have been relied upon.  Continuing to hire workers after Social Security verifications failed to pass muster established the required knowledge that led to criminal prosecution.  The court discounted Gonzalez’ defense that he was just doing what his superiors ordered.

USA v. Gonzalez, 2:09-cr-00009, U.S. District Court for the Southern District of Mississippi

Larry Bridgesmith, Of Counsel
Miller & Martin PLLC
Suite 1200, One Nashville Place
150 Fourth Avenue North
Nashville, TN 37219
lwbridgesmith@millermartin.com | (615) 744-8580

The facts of the case are as follows: Plaintiff’s supervisors going two levels up the chain of authority were allegedly hostile towards Plaintiff’s military service obligations. The supervisors gave the plaintiff a disciplinary warning and reported a violation of the terms of the warning. Another manager, three levels up the chain of command reviewed the personnel file and made the termination decision. The plaintiff alleged the underlying discipline had been fabricated as a result of the hostility towards his military service obligations.

The jury found in favor of the plaintiff, but the Seventh Circuit Court of Appeals reversed, finding that the (third level) decisionmaker had relied on more than the tainted disciplinary decisions of the two lower supervisors. The Supreme Court reversed.

USERRA prohibits discrimination based on an employee’s military service record or obligation for additional service if that service is a motivating factor in a challenged employment decision. Relying on general principles of agency and tort law, Justice Scalia, writing for the Court stated, “it is axiomatic under tort law that the exercise of judgment by the decisionmaker [the third level supervisor] does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.” The case was remanded, leaving open the possibility that the trial court’s jury instruction was harmless error.

The Court’s decision call’s into question a number of lower court decisions allowing employers to escape liability when it can be shown that factors beyond those allegedly tainted by discriminatory bias are part of the decision. The waters appear poised to remain muddied, as the application of general tort and agency theories leaves room for debate.

On appeal of their criminal convictions, the defendants argued that their sentence was too harsh because they had not engaged in extortion, but only blackmail.  The Court of Appeals disagreed, deciding that the two jobs which each paid the unqualified employees $150,00 in annual compensation were indeed “things of value”.

Accordingly, instead of reducing the six month prison sentence and two year probation, the court sent the matter back for harsher sentencing than the trial court had originally imposed.

Be careful what you ask for.

Larry W. Bridgesmith, Of Counsel

Phone: 615-744-8580

Suite 1200, One Nashville Place
150 Fourth Avenue North
Nashville, TN 37219

lwbridgesmith@millermartin.com