WInTeR 2015 California Hotel & Lodging Association 25 This article will give lodging operators an overview of these laws. 1. Immigration Reform and Control Act of 1976 (IRCA) Generally speaking, IRCA has the following effects on virtually all United States employers: • It makes it unlawful for employers to knowingly hire, recruit, or refer unauthorized aliens for employment in the United States; • It makes it unlawful for an employer to continue to employ an alien knowing that he or she is, or has become, an unauthorized alien with respect to such employment; • It requires employers to complete a Form I-9 to verify, under penalty of perjury, that all employees are U.S. citizens, noncitizen nationals (persons born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad), lawful permanent residents, or aliens with temporary authorization to work in the United States; • It requires employers to keep an I-9 record showing eligibility to work in the United States for each employee; • It imposes monetary and criminal penalties on employers for violations and noncompliance; and • For employers with more than three employees, it prohibits discrimination, except for unauthorized aliens, on the basis of national origin or, in the case of protected individuals, on the basis of citizenship. A. Dealing with Job Applicants—The Form I-9 Process For a comprehensive explanation of the requirements for completing the Form I-9, go to www.uscis.gov/sites/default/files/ files/form/m-274.pdf. B. Dealing with Current employees It is not uncommon for employers to learn that one of their current employees is, or might be, not authorized to work in the U.S.—even though the employer did everything “by the book” when he or she hired the employee. This situation arises frequently when the Social Security Administration (SSA) sends a “mismatch,” or “no-match” letter to an employer who submitted Form W-2s informing the employer that it submitted at least one Form W-2 with a name or SSN that does not match SSA records, and asks the employer to provide the correct information within 60 days. The mismatch letters highlight a continuing conflict between immigration regulations and labor laws. On the one hand, an employer cannot knowingly hire or continue to employ an unauthorized worker. On the other hand , the law restricts an employer 's ability to request specific documents for employment eligibility verification purposes. Although the SSA issues different versions of the mismatch letter, all versions of the letter include language that emphasizes that receipt of a letter does not mean that the employee is not authorized to work in the United States. Consequently, employers should not take immediate employment action—such as termination, suspension, or any other adverse action—upon receipt of a mismatch letter. However, an employer with "actual" or "constructive" knowledge that an employee is not authorized to work cannot continue to employ the worker. Thus, if an employee admits that he or she is unauthorized to work, the employer (who now has "actual" knowledge) must terminate the employee immediately. "Constructive" knowledge for these purposes is less easily defined. A letter issued by the INS dated April 12, 1999, states: "In considering whether the totality of the circumstances rises to actual or constructive knowledge, the SSA notice is a relevant fact that would support a conclusion that it does." So, if the employee cannot resolve the discrepancy in the SSA mismatch letter within a reasonable period of time, the employer may face a charge of continuing unauthorized employment if the employee remains on the payroll. (Advising California Employers and Employees, (Berkeley: Continuing Education of the Bar, 2014), Section 4.14A (emphasis added). At least one court has held that SSA “No-Match” letters do not put an employer on constructive notice of hiring undocumented workers sufficient to terminate employment quickly without confirmation. (Aramark Facility Services v. Service Employees International, 530 F.3d 817 (9th Cir. 2008).)
CH & LA Winter 2015
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