Swimming in the alphabet soup of immigration and employment laws

Since the summer, South Florida has been holding its breath because the Immigration and Customs Enforcement agency (ICE) said it will be conducting numerous raids across the country, including in Miami. According to a 2016 estimate by the Migration Policy Institute, a Washington, D.C., think tank, there are an estimated 326,000 undocumented individuals living in South Florida.

Between the increased frequency and fear of these raids and the Social Security Administration (SSA) resuming its practice of issuing Employer Correction Required Notices (sometimes called “no match” letters), companies of every size are having to figure out whether they are complying with federal immigration laws and what to do when those laws seem to conflict with applicable employment laws.

For example, on the one hand, the federal Immigration Reform and Control Act of 1986 (IRCA) requires all employers to verify that workers are eligible to work in the United States. To do this, employers of any size must ensure that Form I-9 is completed and retained.

On the other hand, IRCA also prohibits employers with 4–14 employees from engaging in discrimination with respect to hiring based on an individual’s real or perceived citizenship, national origin, or immigration status. The Florida Civil Rights Act and Title VII, which apply to employers with 15 or more employees, prohibit discrimination based on, among other things, race and national origin.

To avoid being raided by ICE or having your operations grind to a halt due to a raid, you might think it’s a good idea to screen applicants to see whether they are U.S. citizens and then hire only citizens. But you can’t do either of those things without running afoul of the antidiscrimination laws.

Unless you’re required by law or a government contract to hire only U.S. citizens, all you can ask an applicant is whether the applicant is legally authorized to work in the United States, and is legally authorized to work for your company. And you cannot ask anyone to fill out an I-9 form until you’ve offered the applicant employment and he or she has accepted it.

Another common idea employers have is to fire or at least suspend an employee who is the subject of a “no match” letter issued by the SSA.

But you can’t do that either without exposing the company to discrimination claims.

If you do nothing or throw that letter in the trash, then ICE could view your conduct as evidence that you knew of potential immigration issues.

Years ago, the Department of Homeland Security proposed a sort of “safe harbor” regulation that would provide companies with clear instructions and a way to avoid any potential liability. However, those regulations never became final, and there is no talk of reviving those drafts. The prevailing thoughts are that you should:

1. Review your records for errors.

2. If there are none, tell your employees about the letters and ask them to try to resolve the issue with SSA within 30 days.

3. Document your instructions to the employees.

4. Follow up with them.

5. And then proceed cautiously and work with experienced employment counsel before suspending or firing those employees.

What if the employee tells you that he or she gave you a fake name and/or Social Security number originally but now has a valid number? United States Citizenship and Immigration Services says you shouldn’t fire the employee.

But what if you recently fired a Haitian man because you learned that he lied on his employment application about where he worked before, but you want to retain a Cuban woman employee who said she gave you a fake Social Security number? You might face gender and/or national origin discrimination claims if you don’t act consistently.

Knowing the relationship among the laws and your own past practices are a must to reduce liability.

Laurie Riley is a partner in the labor & employment practice at Jones Walker LLP in Miami. She defends employers in civil rights and other employment-related disputes, including litigation under federal laws and their state law counterparts.

▪ This is an opinion piece written for Business Monday’s “My View” space in the Miami Herald. The views expressed do not necessarily reflect those of the newspaper.

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