Meat + Poultry - February 2006 - 51

Labor
Immigration frustration
By Richard Alaniz
meat&poultry@sosland.com

Under the Immigration Reform and
Control Act, meatpacking companies
are often left between a rock and a hard
place when confronted with an employee who may be unauthorized to work in
this country. On one hand, if the employer "looks the other way," they can
be sanctioned under I.R.C.A. for employing unauthorized workers. On the
other hand, if an employer goes overboard investigating immigration status,
they risk liability under I.R.C.A.'s antidiscrimination provisions.
Employers who suspect their employees may not be authorized to work
in this country should adopt a safe,
uniform policy for dealing with these

are acceptable verification documents under the law and appear to
be genuine; and
* verifying a permanent resident
only because his or her green card
has expired.
The hard place
While employers risk liability if they
investigate employees without reason, employers still have a duty under
I.R.C.A. to review work-authorization
documents for fraud. Employers also
are liable under I.R.C.A. for "knowingly" hiring unauthorized aliens or for
continuing to employ such aliens after
learning they are not authorized to work.
An employer who violates I.R.C.A.'s requirements in this respect can be fined
substantial amounts.
Employer liability is not limited to
those situations where it has knowledge

Employer liability is not limited to those situations
where it has actual knowledge that an employee
does not have work authorization.
situations, as I.R.C.A.-related penalties
can be harsh.
The rock
In cases with suspicious circumstances or employee fraud, employers are not
liable for making further investigations
of employees' status. However, employers risk liability if they unreasonably
investigate an employee's authorization
status by requesting documents and verification without reason. Some common
red flags that often result in liability under I.R.C.A. include:
* requests by employers for specific
documentation (It can be considered
"document abuse," if the request is
made for the purpose of discriminating against an individual on the
basis of national origin or citizenship status.);
* employers' refusal to accept documents, during the employment eligibility verification procedure, that
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February 2006

an employee does not have work authorization. "Knowledge" is defined under
I.R.C.A. to include situations where the
employer deliberately fails to investigate
suspicious circumstances. In such cases,
the employer has "constructive knowledge" that an employee is unauthorized
to work. The following are examples of
constructive knowledge:
* The employer fails to complete
Form I-9, and it turns out the employee is unauthorized to work.
* The employer continues to employ
the employee without reverifying
his or her employment eligibility
after the expiration date for employment eligibility listed by the
alien in Section 1 of the I-9 form.
* The employer has information that
indicates the employee is not authorized to work.
Avoiding trouble
As a general rule, employers should

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not make inquiries about an employee's
work authorization based on workplace
rumors. However, if there is conflicting documentation or reliable information becomes available to an employer
indicating immigration irregularities,
further inquiries are permissible. Employers are not expected to be detectives
ferreting out all unauthorized workers.
Therefore, when an employee presents
documents evidencing employment
eligibility that appear genuine, employers can consider those documents as
proof of the employee's eligibility to
work in the United States. Without clear
evidence to the contrary, the employer
should avoid inquiring further about the
employment eligibility of a worker.
Some basic guidelines can help keep
employers out of trouble in most cases.
First, establish a written, I.R.C.A. compliance policy to be followed by all
managers with hiring authority. The existence of a uniform policy is the best
guarantee the employer can maintain
control over the hiring process throughout the company to avoid impermissible
conduct. The most important rule to
remember in conducting those procedures is to be absolutely uniform with
regard to every new employee, whether
that employee appears to be American
or not. Next, integrate this compliance
policy with all documents that state the
employer's overall hiring policy, such
as management training materials or
supervisor handbooks. Next, train all
managers with hiring authority to ensure compliance with this policy and
proper I-9 employment verification procedures. Also, store I-9s separately from
other employee personnel records. Last,
conduct periodic I-9 audits to discover
and correct errors. Adherence to these
policies should protect employers from
most problems.
Richard Alaniz is a partner in the Houston
law firm of Alaniz and Schraeder L.L.P.
Legal topics provide general information
and not specific advice.
We would like to hear from you- your comments
and questions about this article are welcome.
E-mail the author at: meat&poultry@sosland.com

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Meat + Poultry - February 2006

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