Even before new immigration reform law,
employers face new responsibilities
The immigration reform issue has raised enormous legal, logistical, financial and moral questions throughout the U.S. In response, both the House and the Senate have approved legislation. However, the chasm between their respective bills seems so large -- and the election year stakes so high -- that Congress has opted not to follow its usual procedure of hammering out a compromise in committee sessions. Instead, both houses of Congress have now opened the matter for continuing public hearings, ensuring that the passage of any legislation is unlikely before the end of the current session.
Yet, with all the controversy, all the debate and all the passion surrounding the issue, there seems to be one aspect that lawmakers in both houses, and on both sides of the aisle, agree upon: When it comes to verifying work eligibility, the escalating burden of responsibility will fall squarely on the shoulders of the employer. It's too late for "wait and see"Although the details of the new employer responsibilities have yet to be worked out, many were hoping that the political debate would give employers at least a few months of breathing room. Recent events have laid that optimistic view to rest, as the federal government is making it clear that it is preparing to crack down on the hiring of illegal aliens -- and impose a new compliance burden on all employers -- regardless of what ultimately happens legislatively. Using its discretion, the nation's new immigration agency, Immigration and Customs Enforcement (ICE), part of the Department of Homeland Security, has taken the most aggressive approach to employer compliance under existing law seen in several years. According to a July 31 New York Times article, which has widely publicized the trend, the predecessor immigration agency made 25 employer arrests in 2002. In comparison, from January to July 2006, ICE had already made 445 employer arrests. But, there is even more prescient writing on the wall. In June, the Department of Homeland Security published proposed rules in the Federal Register that give investigators access to data concerning "no-match" letters, the letters sent by the Social Security Administration when a discrepancy is found between the name and Social Security number provided by an employee. If the Department of Homeland Security has its way, employer receipt of such a letter would give "constructive knowledge" of a possible problem and create a logistical procedure to be followed in a very tight time frame or risk law enforcement action. Considering the millions of these letters that go out each year, and the many benign reasons for a "mismatch" -- such as a new marriage or a simple typo -- the burden on employers would be significant. Whether you consider federal regulatory actions such as these proactive or jumping the gun, it is clear that the current administration can no longer be said to be lax on illegal hiring, and that these types of efforts could very well be merely an early indication of a significantly more stringent environment to come. The states weigh in too
Further complicating the issue is the fact that several state and local governments (including Colorado, Georgia and Suffolk County, New York) have already passed legislation that puts additional paperwork and verification responsibilities on employers. How these laws will work alongside ultimate federal legislation is another unknown issue for employers. New federal law coming
In this climate, with state and local jurisdictions taking their own legislative action and the regulatory climate becoming more aggressive, the federal legislative effort is moving ahead, and is likely to accelerate after the November election. The country is heading into a new era for employers in regard to screening for employment eligibility, but within that certainty lays a wide spectrum of possibility. For example, the House version of the immigration reform bill mandates that all employees be verified. The Senate version points primarily to new hires, unless employment related to critical infrastructure is involved. Additionally, in a best case scenario, whatever responsibility the government assigns to employers will also be accompanied by sufficient levels of public resources, sufficient time to implement and a levying of penalties that take good faith compliance into consideration. Likely to be at the center of the increased employer responsibility is the Electronic Employee Verification Program (EEVP), since both the House and the Senate bills currently mandate it. "Mandatory EEVP for all employers seems a forgone conclusion. It isn't a question of whether, it's a question of when. And probably sooner rather than later," explained Ceridian Manager of Government Relations, Rob Smith. Notwithstanding the legislative momentum, the ability of this collective federal database to handle the millions of requests with which it will be deluged is in question -- as is its level of accuracy, estimated at 85 percent even at its current relatively low volume of usage. Also at issue is that the EEVP is not useful for spotting identity fraud, which has become a major issue in recent years. It seems evident that premature reliance on the system could be a recipe for disaster. This would be especially true if employers are burdened financially as well as administratively. Currently, the Senate version of the bill allows the government to charge employers a fee for the mandatory use of the EEVP, while the House bill does not. Potentially reassuring are the words of Secretary of the Department of Homeland Security Michael Chertoff who noted in a recent speech that "we have to admit from the get-go that we've got to provide employers with the necessary tools to verify the legal status of their employees." Many experts hope that this means the government plans to make EEVP significantly more robust and plans to hire the hundreds or thousands of analysts needed to enter data and ensure smooth and effective operation before mandating that millions of employers access the system. What to do now
Employers who think that they might have a problem with illegal workers should take a hard look at their operations, and do so quickly. For the vast majority of employers who have made every effort to stay on the right side of an increasingly complex law, remaining informed -- and compliant with any new verification system -- is key. Ceridian can help you stay on top of this legislative issue. "Through our extensive compliance services programs, we are staying very close to the situation as this legislation develops," explains John Bruellman, Ceridian vice president of Compliance Services. Customers can get the latest news on this topic by accessing Ceridian's online Risk Management Solution Center at www.hrcompliance.ceridian.com. "We are also formulating plans on how to respond to what will certainly be a growing customer need. We will be able to help our customers in this area," Bruellman said. "Specifically, I anticipate that we will be offering an employee verification service, designed to meet the parameters of new legislation." Ceridian is exploring several options, including the expansion of current background screening offerings or expansion of the SSA filing practices that are currently done for wage attachment services. Regardless of the selected approach, Ceridian wants to keep customers and prospects as informed as possible. Join us on October 11 at 2:00 p.m. CDT for a free Leadership Web Forum highlighting the potential immigration legislation. More information on this Web forum will be coming soon.
