One year ago, President Bush and a bipartisan group of 12 Senators introduced a plan that would help regulate aliens coming into the country and, hopefully, reduce the number of illegal aliens who pour over our borders every year. After much debate, Senators had a decision to make: Would they accept the comprehensive immigration reform plan and stop the nearly 500,000 undocumented workers who slip into the U.S. each year? Unfortunately, their answer was a resounding “no.”
Since that vote, employers across the country have been left to fend for themselves when it comes to hiring workers and staying on the right side of the law. To make matters worse, when the comprehensive immigration reform measure died in the Senate, the Administration decided that if it could not legislate, it would regulate.
The first regulation proposed was the new Social Security No-Match letter rules. The Department of Homeland Security (DHS) issued these new rules and took a regulation that was not originally an immigration enforcement tool and turned it into one.
Under the new rules, an employer and employee have 93 days to resolve the issue of the employee’s name not matching the social security number in the Social Security Administration’s (SSA) database. If this cannot be done within the time allotted, then the employee is to be terminated. If an employer does not do so, then the employer could be held responsible for continuing to hire a potentially illegal alien.
Thankfully, these new No-Match rules are being litigated in federal court and are not yet effective, but the effect of this regulation is to put the onus of responsibility on the employer to ensure that the immigration laws are upheld—a new task that not many are prepared to handle.
The next regulatory action taken was by the Department of Justice. No more than a few days into his new job, the Attorney General of the United States, Michael Mukasey, announced an increase in the penalties for employers who violate the current immigration laws.
Pursuant to federal law, specifically 8 U.S. Code Section 1324(a), no employer may knowingly hire or continue to hire an alien who is unauthorized to work in the country. Should any employer do so, he is subject to civil and even criminal penalties.
In March of this year, Attorney General Mukasey increased those penalties by nearly 25 percent. As such, employers are now faced with the potential of anywhere from a $375 to $3,200 fine per alien for a first offense. To say the least, the government has ratcheted up the pressure to make sure employers have hired work-eligible employees.
Not only have we seen significant movement in the regulatory arena, but Congress has once again stepped into the breech. In the House of Representatives, Rep. Heath Shuler (D-N.C.) introduced the Secure America Through Verification and Enforcement Act, or the SAVE Act. His bill enhances many immigration enforcement measures and, of course, increases penalties for immigration violations and violators inside the country.
In the Senate, the same focus on enforcement has been shown with 11 Republican Senators filing 15 bills that establish things like more jail time for illegally entering the U.S.; a 2010 completion date for the 700-mile border fence; and a penalty for states knowingly issuing driver’s licenses to illegal immigrants.
The effect of this regulatory and Congressional focus on the illegal immigrant issue means that employers must now be extremely careful when they hire new staff. For the club industry, this means we must tread very lightly.
It is critical that we do all we can to ensure our employees are who they say they are and that they are authorized to work in America. Private clubs cannot afford to risk being seen in Washington as tolerating any employment of illegal aliens—no matter how unintentional it may be. So, how do we best inoculate ourselves from such a charge? The answer is E-Verify.
The E-Verify program is the federal government’s Web-based tool that enables employers to electronically verify the identity and work authorization status of new employees. It works hand in hand with Form I-9, and it provides employers with an added check in addition to their reliance on the documents presented to them by the prospective employee.
The program, formerly known as the Basic Pilot/Employment Eligibility Verification Program, takes the information received from the Form I-9 and runs it through databases from DHS and SSA. Within seconds, the employer receives a confirmation of work eligibility for the employee or a non-confirmation that requires additional information from the new hire.
To date, E-Verify has been able to confirm employment eligibility of approximately 92 percent of those whose names have been submitted to the databases. Interestingly enough, out of the 8 percent of employees who were not successfully matched, less than 1 percent ever contest the non-confirmation. Thus, it seems that the program does winnow out those who have forged or fraudulent identification or work authorization documents.
Most importantly, the E-Verify program provides an employer with one overarching benefit: Protection against prosecution for hiring an illegal alien. Should an employer use the program and receive a confirmation that a new hire is legal and it is later determined that the employee is in fact an illegal alien, the employer shall be immune from federal civil or criminal prosecution. In other words, an employer who uses E-Verify cannot be held accountable for the government’s mistaken work eligibility confirmation.
The E-Verify program is a tremendous help as a protection for employers who are left unsure when presented with documents approved by Form I-9. And, because of its ability to discover illegal aliens through the verification process better than Form I-9, E-Verify has significant support in Congress.
When it was first introduced, E-Verify was given until Nov. 30, 2008 to establish its usefulness, and it has more than done so. In response to its success, Shuler has included a reauthorization of the program in his SAVE Act. Indeed, he has found it so beneficial that his bill makes the program mandatory for all U.S. businesses.
Also, there is reauthorization of the program found in a bill introduced by Sen. Jeff Sessions (R-Ala.) as part of the 15 immigration-related bills introduced by Republicans in the Senate. His reauthorization also seeks to make the program mandatory.
While these bills provide an extension to the program and additional measures to enhance E-Verify, it was a bill sponsored by Rep. Gabrielle Gifford’s (D-Ariz.) bill that brought everyone together and passed the House of Representatives by an overwhelming vote of 407-2. The Employee Verification Amendment Act of 2008, H.R. 6633, provides a straight five-year extension of the federal government’s E-Verify program. The bill also ensures that the Social Security Administration (SSA) is reimbursed by the Department of Homeland Security for any additional costs it incurs while administering the program.
The success of Gifford’s bill virtually ensures that the program will be renewed and that it will have enhancements to make it even better for the employers who use it.
With the political climate the way it is and with politicians looking for any hot-button issue to exploit for electoral gain, the issue of hiring illegal aliens will not go away. The private club industry is very good about hiring only work authorized individuals, but mistakes do happen. We are all aware that our industry is not immune to the problem of undocumented workers finding their way onto our kitchen, course maintenance and housekeeping staffs.
In this day and age, it is imperative that our industry insulate itself as best it can from the problems that can arise from mistakenly hiring an illegal alien. To do that, NCA suggests that all member clubs go to www.dhs.gov/e-verify and enroll today.
Though E-Verify is not a panacea, it does give every club manager the best defense against one of the biggest problems in America today. With the federal government now taking an aggressive tack to stop the hiring of illegal aliens, this program gives you an official federal government mechanism that helps to remove the uncertainty that surrounds reviewing and accepting documents that purportedly establish identity and work eligibility.
The federal government got it right when creating this program to help American businesses. Take advantage of it and protect your club by enrolling today.