"There’s an entire avalanche coming down on the small business owners, and most of them stand totally clueless,” says John Sarno, president of the Employers Association of New Jersey. He refers to the legal ocean of new paperwork and responsibilities that local, state and federal laws will be heaping upon those whose firms hire even a few employees. An initial foreshadowing of this is shown in the new twists involved in the I-9 Employment Eligibility Verification forms.
To help business owners and human resource professionals understand the necessary processing and caveats in I-9 form compliance, the EANJ is offering a breakfast briefing on Wednesday, May 11, at 9:30 a.m., at EANJ’s Livingston offices. Cost: $60. Visit www.eanj.org. Sarno will be assisted in the presentation by Drew Torpey, special agent with Immigrations and Customs Enforcement (ICE); and Virginia Matyka, an ICE forensic auditor.
Sarno jokes that he made up for his “common background by gaining three degrees.” Young Sarno was raised by a laborer father and a factory-working mom in Bergen County. He attended Ramapo College, graduating with a bachelor’s in psychology in 1977, followed by a master’s in counseling and a law degree from Seton Hall. He began his legal career advocating for equal rights and access for the disabled.
Today Sarno advises companies on all aspects of employment and labor law, ranging from sexual harassment to wrongful discharge. He has written several books advising employers how to avoid litigation and teaches at several universities concerning ethics and management issues. As to those three academic tracks that defined his initial career, Sarno says, “I employ all three, every working day.”
The Immigration Reform and Control Act of 1986 was passed to stop enticing illegal immigrants across U.S. borders by prohibiting the hiring of unauthorized aliens. Seems sensible. Stop the jobs and stop the flow of aliens. “The problem has always come in the methods of enforcement,” says Sarno, “and currently we have seen a great shift.”
#b#Supply to demand#/b#. Whatever the laws, it is obvious that many employers will always seek the less expensive labor that immigrants provide, and immigrants will ever cross the borders for American jobs. Under the Bush administration, explains Sarno, stanching the flow focused on the supply side. That is, immigration officials spent their efforts catching the illegals and those trafficking groups that smuggled them into the U.S.
With the Obama administration, immigration now takes aim at the demand side of the equation, scrutinizing the employers of illegals. Since 2008, corporate enforcement involving illegals has quadrupled. Many of these are high profile cases, such as the 2008 fine of $1 million levied against MacDonald’s for hiring 58 illegal immigrants, (the first of several accusations leveled against the firm). Several illegal-hiring employers have come to the courts facing criminal prosecution.
#b#Employers’ tightrope#/b#. Many employers feel that they are being made into an arm of both ICE and Homeland Security enforcement. By law, all employees are required to present “facially valid” documents which a) confirm the employee’s identity and b) determine his/her legal authorization to accept employment in the United States. Such forms may include a U.S. passport, properly certified foreign passport, a green card; and accompanying documents, such as a driver’s license or state I.D. to confirm identity.
The employer must exert “reasonable effort” to determine that the documents are valid. And there’s the rub. “You get a bit of a break here,” says Sarno. The law is not demanding that the employer be a fraud and forgery expert. If it appears right and proper, the employer may accept the papers as valid, fill out the I-9, and hire the employee.
However, if he goes too far, the employer may be accused of “document abuse.” This over-searching of the candidate’s records, while definitely illegal, holds a lot of gray in its definition. If an employer rejects the proffered papers and requires further proof, he may be setting himself up for a lawsuit.
In the Garden State, the I-9 compliance woes fall mainly to those who hire agricultural laborers, landscapers, and minimum-wage factory help, and construction workers. While out of the public eye, this comprises a substantial percentage of the work force. Despite its great outflow due to retirement, New Jersey’s population continues to gain due to a vast immigrant influx. Employers naturally want to take advantage of all this talent, but it may just involve an avalanche of paper and staff time to bring these workers legally aboard.