In what some observers called an act of corporate revenge, Eastern Fisheries recently fired more than 100 process workers, mostly Central American illegal aliens employed for years under temporary contracts through two local personnel agencies. Eastern Fisheries offered the terminated employees a chance to reapply directly with the company for reinstatement. No one, said a company official, “will be deprived of that opportunity.”
The rub is that the reapplication process required workers to confirm their identification and Social Security numbers through a government website, e-verify.gov. Of the 110 workers previously employed at Eastern Fisheries through the temp agencies, only five were rehired within the first few days after their dismissal. The illegal immigrants that worked at Eastern Fisheries knew that the Social Security numbers they put on their I-9 forms were false and that they would not pass an E-Verify check.
Adrian Ventura, a labor activist who has been organizing workers at Eastern Fisheries for several years and may have been Eastern Fisheries’ target, confirmed that the verification process effectively excluded illegal aliens from reapplying since the outcome, a failed verification, was certain.
The labor dispute, and the confusion over whether Eastern Fisheries would be considered the workers’ joint employer along with the agencies, led to the new company requirement for verified Social Security numbers. While examining Eastern Fisheries, the National Labor Relations Board determined that, indeed, the company should be considered “a joint employer.”
For years, unscrupulous employers that seek to hire cheap illegal immigrant labor have used employment agencies as their beard. If questions arise about employees’ lawful presence, corporations say that verification is the responsibility of the agencies and that their hands are clean.
But an $11 million settlement in 2006 between the Department of Homeland Security and Walmart determined that the company violated the 1986 Immigration Reform and Control Act when it hired illegal immigrant workers even though an agency acted as an intermediary. Immigration and Customs Enforcement raided 60 Walmart stores and found that 245 illegal aliens were employed as night janitors and cleaning personnel. In a previous lawsuit, a federal judge in New York approved a collective action against Walmart based upon the allegation that Walmart developed “a fraudulent scheme” with its maintenance contractors across the U.S. “to use undocumented workers to provide janitorial and cleaning services.”
Under IRCA, employers have specific hiring responsibilities. They must not knowingly hire or continue to employ any person not authorized to work in the U.S. Employers have an independent duty to verify the employment eligibility of every person hired through the I-9 process. An employer acts knowingly if it has constructive knowledge that a worker is not authorized to work in the U.S. Constructive knowledge can be inferred “through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” Such knowledge can be inferred where the employer “(i) Fails to complete or improperly completes the I-9; (ii) Has information available to it that would indicate that the alien is not authorized to work …; or (iii) Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.”
IRCA makes clear that an employer cannot evade its requirement by using independent contractors. If an employer uses a contractor to retain illegal aliens as employees, the employer is deemed to have illegally hired the alien.
The Eastern Fisheries example proves that E-Verify’s intention – to confirm lawfully present workers, and authorize them for employment – is successful. The way the employer applied the program, however, is wrong and hurtful. E-Verify is intended to determine a new employee’s legal status within the first three days after he’s been hired. If the employer receives a nonconfirmation of status letter, the employee can appeal. But in the Eastern Fisheries case, more than 100 employees dependent on their wages were abruptly terminated. Had E-Verify been used as an integral part of Eastern Fisheries’ initial hiring process, a lot of anguish among the employer and employees could have been avoided.
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