Hiring Amidst the Immigration Debate

The employment world is now reeling from a sudden new wave of government regulations and workplace enforcement efforts. Despite the failure of Congress to pass comprehensive immigration reform, new polices from US Immigration and Customs Enforcement (ICE) and bold new precedents in state legislation have changed the hiring landscape almost over-night. An unprecedented increase in arrests of top-level executives and new policies on employment verification are all a part of this immigration "climate shift."

Summary of key developments:

• DHS has issued a new I-9 form and updated instructions for completion. As of November 7th 2007, this form replaces all previous versions, and is the only form that can be used after December 26th 2007. Five documents have been removed from the list of documents employers can accept to establish identity and employment eligibility, and one new document was added. (http://www.uscis.gov/i-9).
  


• ICE has launched a new campaign of workplace raids resulting in increased penalties and jail time for employers. In 2007, ICE made 863 criminal arrests and 4,077 administrative arrests in the workplace alone. (http://www.ice.gov/doclib/pi/news/factsheets/fy07accmplshmntsweb.pdf)
  


• DHS has increased civil penalties for workplace violations an average of 25%. Effective March 27th fines for non-compliance start at $375 per infraction. If convicted of knowingly or intentionally hiring undocumented aliens, employers on their first offence can be fined up to $3,200 dollars per illegal worker. For repeated violations, as much as $16,000 per incident can be assessed. (http://www.usdoj.gov/opa/pr/2008/February/08_ag_134.html)
  


• State legislatures are now passing laws requiring employers to use the federal E-verify program to electronically confirm new employees' work eligibility. While the federal government encourages the use of E-verify, it has not made the program mandatory due to inadequacies in the database. In February, despite known deficiencies and challenges to its constitutionality, an Arizona district court upheld the States right to pass its own comprehensive immigration reform act. With this new precedent, It has been predicted that as many as half of all U.S. States will follow suit. (http://www.shrm.org/law/library/CMS_024564.asp)

E-verify: Proceed with Caution

With so many new developments, what must employers do to comply with or prepare for these changes? Many experts are advocating that employers nationwide, in the 40+ states that have not yet made it mandatory, voluntarily enroll in the E-verify program. However, before you sign up, read fine print.

In my former role as head of HR for a small services company, our legal counsel advised us not to enroll in the E-verify program. Having used the program in the past, I was happy to heed his advice. Though you may feel compelled to register for the program in good faith, as a precondition you must sign a Memorandum of Understanding (MOU) that basically grants the ICE access to your worksite and your records at any time. By your willingness to comply, you essentially put yourself on the government's radar. This could in effect double the likelihood of any I-9 error or omission, being discovered by an ICE inspector; and consequently double the likelihood civil penalties being assessed.

Another problem with using E-verify is the inadequacy of its database itself. According to an evaluation commissioned by the US Citizenship and Immigration Services (USCIS) in September 2007, "the database used for verification is still not sufficiently up-to-date to meet the requirement for accurate verification, especially for naturalized citizens." Having used this system myself, I can tell you that this system has, on several occasions, had an adverse impact on employees with legal work authorization, who were not able to start work due to incomplete data. (http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf)

Small Business Must Be Proactive

In my opinion, the deficiencies in the E-verify system simply make it impractical for many employers, particularly small businesses, to use the E-verify system in its current form. Regardless, employers must bring their hiring practices into compliance and must be pro-active as new legislation emerges. Here are some helpful tips:

• Perform a Self-Audit - Hire an employment law firm, or an HR consultant who is knowledgeable and up-to-date on all the current labor laws and changes, to perform a complete audit of all of your I-9 records. Audits should be performed at least once a year.



• Note discrepancies and make corrections- During the audit, note any discrepancies and document them on a separate list. Some errors on I-9's can be corrected by crossing through them, and filling in the correct information. In cases with multiple errors, it is sometimes advisable to re-verify the employee's work authorization by completing a new I-9 form. Caution: If you do complete a new form for an active employee, do not discard the old one. Rather, attach it to the back of the new form.



• Document all changes and corrective actions- The idea is to show an ICE inspector in "good faith" that you admit your recordkeeping has not been perfect in the past but you have taken steps to remedy this and are now being pro-active.



• Train all staff involved in the I-9 process - I recommend limiting the number of individuals responsible for completing the I-9 process to as few as possible to lessen the likelihood of mistakes. Many of the errors I have encountered on audits were committed by field supervisors and other personnel who are unfamiliar with the process and its importance. Re-train all staff on the proper completion, and retention of these forms. Make sure they are using the latest version, and understand the consequences of errors. Refer to "Handbook for Employers" (http://www.uscis.gov/files/nativedocuments/m-274.pdf)



• Keep your I-9 forms separately from your employee files. I recommend keeping your I-9's in two separate binders, one for "active" employees, the other for "inactive". Each binder should be kept in alphabetical order and up-to-date at all times. In the front of the binders, include official announcements of procedural changes, lists corrections made as a result of your audit, and dates when staff were trained. It goes a long way to showing "good faith" compliance if your records are pristinely organized and readily accessible to an ICE Inspector.

An Electronic Alternative

In response to the outcry from employers to simplify the I-9 process, the DHS and SSA have designated a new service, called Form I-9 Compliance, LLC (www.formi9.com) to electronically administer the I-9 employment verification process. The company offers a web-based service that lets employers complete I-9 forms online. The system will automatically check for errors, allow employers to store I-9's electronically, and automatically notify as work authorization expires. Form I-9 Compliance also offers a seamless integration with the E-verify program for employers who choose to participate.

Though I have not used the services of Form I-9 Compliance, LLC myself, it seems to be a very practical solution to the administrative burden of the I-9 process. In its "Terms of Use," employer privacy is heavily emphasized, mitigating employer fears of undue attention from ICE.

Remember, the information provided here is not a substitute for legal advice. Before implementing these or any other compliance strategies, always consult with an attorney who is familiar with your present business needs and you past experiences with Immigration issues.

Can Small Business survive the Immigration Debate?

Over the last 4 years leading up to the 2008 presidential election, the "immigration debate" has been increasing in volume almost exponentially. The attempts by congress to pass comprehensive immigration reform have failed despite fervent bipartisan efforts to address this very controversial yet important issue. However, under tremendous political pressure, the Department of Homeland Security (DHS) has announced new efforts to enforce existing immigration laws and state and local governments are passing new legislation that goes far beyond existing federal legislation. These new developments are putting intense and unprecedented pressure on employers whose livelihood depends on immigrant labor.

DHS intensifies workplace enforcement

Last August, The bureau of Immigration and Customs Enforcement (ICE), which is the enforcement agency, of the DHS published a new mandate requiring employers receiving "No-Match" letters from the Social Security Administration (SSA) to audit their I-9 records to confirm Social Security Number mismatches or note any discrepancies, and report back to the agency. The new rule also requires the employer to terminate employees who have been unable to resolve SSN mismatches within 90 days of receipt of the letter.

Though immediate implementation of these new directives has been delayed in the district courts due to questions surrounding "safe harbor" provisions for employers, the ICE remains resilient. According to Mary E. Previc, an attorney with the Keller and Heckman law firm in Washington D.C., The ICE is embarking on a "new campaign" of I-9 Inspections nationwide. Employers suspected of hiring undocumented workers are being issued a subpoena to produce an unprecedented amount of information including: entire payroll records, certified lists of employees and their employment records, and names of all I-9 preparers.

In addition to these new measures, DHS has increased its fines by an aaverage of 25%. Effective March 27th Minimum penalties for non-compliance start at $375 per infraction. If convicted of knowingly or intentionally hiring undocumented aliens, employers on their first offence can be fined up to $3,200 dollars per illegal worker. For repeated violations, as much as $16,000 per incident can be assessed along with a 10-year prison sentence.

States filling the void on immigration reform

Because of the federal government's inability to pass comprehensive immigration reform, several states have recently passed legislation that requires employers to verity an employee's work eligibility electronically, through a federally administered computer program called E-verify. In a landmark case, a federal judge upheld a new law in Arizona which not only makes electronic verification mandatory for all employers, it also gives the state the authority to revoke a company's business license if found to have knowingly hired an illegal immigrant.

Under current federal law, employers are responsible for manually examining documents that prove both work eligibility and identity and document that information accurately on an I-9 form. However, participation in E-verify program is not mandatory. According to a recent report commissioned by the U.S. Customs and Immigration Service, "the data base used for verification is still not sufficiently up to date to meet the requirement for accurate verification, especially for naturalized citizens."

Despite of the inadequacy of this system, the judge's decision in the Arizona case has now set a precedent which will significantly embolden other states to pass similar legislation. Bonnie Gibson, an attorney with Littler Global, a law firm based in Phoenix remarked that, "it is likely that up to half of the states will follow Arizona's lead and will do it in this legislative session."

Employers find themselves in a difficult position

Employers in industries such as construction, facilities management, and agriculture who depend greatly on the availability of the immigrant workforce find themselves "caught between a rock and a hard place". Many small businesses just can't afford to turn away immigrants, who are often the only ones able and willing to fill manual labor positions.

I participated in the E-verify program when I was a hiring manager in the Poultry industry. Despite paying prevailing wages, offering excellent benefits, and intensive recruiting efforts extending to a 60-mile radius, we would only seem attract Mexican and Guatemalan immigrants. I found very few US citizens who were willing to work in poultry processing.

About 90% of the workers I hired and processed through the verification system received a "tentative non-confirmation" notification which states that the system was unable to verify their work authorization or their SSN. By law I had to hold their position for 10 days to allow them time to correct any discrepancy. While most individuals receiving these letters never returned, about 15% appeared to have legitimate authorization but their name differed slightly on the "list A" and "list B" documents they presented. I have seen several cases were an issuing authority such as SSA had juxtaposed Hispanic surnames which triggered the non-confirmation. In other cases I have seen eligible employees adversely affected by this program because their information had not been updated in the database.

To keep the plant from grinding to a halt had to rely on two different temp agencies and bus workers participating in welfare-to-work programs in from a city 60 miles away.

As part of a large corporation, we participated in the E-Verify system out of "good faith" but the administrative burdens that resulted were excessive. If we had been an independent small business and were required by law to participate in the system in its present form, we would not have survived.

If more states continue to pass legislation requiring employers to participate in the federal E-verify program, a program which the government admits is inadequate, it will make it virtually to impossible for small business in key sectors of the economy to survive. Tighter enforcement in the workplace will backfire unless it is counterbalanced by an increase in the supply of legal workers to meet the demand. Since only the Federal government has the power to "increase" the supply, local governments, no matter how well-intentioned, could do irreparable harm to an economy that is already facing recession. On the other hand if all the Federal government does in response is make a belated attempt to enforce the existing failed immigration policies, I fear that many small businesses could face extinction.

Suggestions for an Effective Orientation

An effective orientation process can make a tremendous difference in whether or not a new employee becomes a significant asset or a costly liability . The time and effort invested in the beginning can insure a happier, safer and more productive workforce.

1. Begin orientation with the most important information first (basic job survival). More detailed information should be provided in a timely manner yet at a pace that the new employee can fully understand and absorb it.


2. Emphasize people not just polices and procedures. Employees should have a chance to get to know the people around them (supervisors and co-workers). They should have a clear idea of what role other people play in the company and the overall “chain of command”.


3. Buddy a new employee with an experienced co-worker. This provides on-going support during the first few days or weeks of employment. Make sure the experienced employee a) wants to buddy-up, b) is highly competent technically and follows proper safety procedures, and c) has sufficient inter-personal and communication skills needed to be an efficient tutor.


4. Utilize multiple sessions or meetings during the orientation process. Ideally these sessions should be spread out over a 2 to 5 day period. This way, the new employee will retain much more of the information presented, experience less anxiety, and more efficiently adapt to their new work environment and responsibilities.

Orientation Checklist

The following checklist should serve you well as a measuring tool for determining the effectiveness of your orientation process. If your orientation is effective, upon completion of the process, your new employees should be able to answer affirmatively to all of the following questions:

1. I have a clear understanding of the company’s core business (what it does, services rendered, products produced, needs filled and etc.) and its mission and/or vision.


2. I understand the duties and responsibilities of my job and the standards by which performance will be judged.


3. I know the location of relevant company facilities and equipment that are central to my day-to-day work experience.


4. I have all the basic resources (information, procedures, equipment, etc.) I need to perform my job effectively


5. I have met with the person I report to and have either met or spoken to co-workers that I need to work with as part of my job.


6. I am aware of all security procedures related to my job and the company in general (access to and use of company property, privileged or proprietary information, etc.).


7. I am aware of all safety requirements, equipment and procedures necessary to perform my job safely.


8. I am familiar with all basic company policies (including conduct, holidays, absenteeism, and vacation time).
   
9. I understand my wage structure and am aware of any bonus or incentive arrangements that could affect how much money I earn.


10. I understand my benefits package (health insurance and other related benefits) and am aware of the basic procedures for using those benefits.


11. I am aware of all company support services: I know who to go to if I need help (job information, instructions, medical attention/accident reporting, counseling, substance abuse, personal issues, etc.).

The Two Phase Orientation

It is recommended that a complete orientation be done in two sections or phases, an overview phase and the job-specific phase.

Overview Phase

The overview phase deals with the basic information an employee will need to understand the broader organization in which he/she works. This phase is often conducted by the human resources department or administrative staff since much of the content is general in nature.

It is also recommended that the site manager be introduced to the new hires at this time to establish good relations between the hourly employees and top management right from the start. You may wish to have that “top manger” conduct part of the orientation such as telling about company history, philosophy or background or give the new hires an introductory tour of the facility. If your company is a large, multi-site organization, a pre-recorded greeting or welcome by the company’s president/CEO is a good way to start.

During the overview phase the following general areas should be covered:

• The company in general, its departments and branches.


• Important policies and general (non-job specific) procedures should be discussed


• Information about compensation and benefits


• Safety and accident prevention issues


• Employee rights and responsibilities


• Overall discussion and tour of physical facilities

During this phase it is a good idea to have employees follow along in the employee handbook so they know were important polices and procedures are found and can refer to them again. The overview phase does not have to be a recital of every section of the employee handbook. Instead, the most important issues should be addressed and summarized.

Your company’s employee handbook should have included an “Acknowledgement of Receipt and Understanding” that should be removed, signed, and turned in by the new employee upon completion of the orientation processes. This acknowledgment is general in nature and therefore your company attorney may recommend that you have individual signed statements of understanding for the most critical policies and procedures such as handling of hazardous materials, sexual harassment, disclosure of trade secrets, and etc.. These individual statements should be stored in the employee’s personnel file.

Job-Specific Phase

The job-specific phase of the orientation process is best conducted by the immediate supervisor and/or manager since much of the content will be specific to the individual and their workstation or area. At this time the new employee is made aware of the production cycle, quality control, and how his/her role fits into the completion of the final product or goal. It should be specifically demonstrated how the employee’s actions directly affect subsequent steps in the manufacturing process.

During the job-specific phase of the orientation process the following areas should be covered:

• Function of the organization and how the employee fits in


• Specific job responsibilities, expectations and duties
  Layout of the work area


• Job specific policies, procedures, rules and regulations (including all safety measures)


• Introduction to co-workers and key people in organization

This phase can be considered to encompass the first few days on the job in which the employee is not yet expected to be 100% proficient and works closely with supervisors and/or co-workers who supply additional information, tips and instruction as the employee is brought up-to-speed.

New Hire Orientation: An Introduction

After being hired it is vital that new employees have an understanding of the operation, what’s expected of them, and that they feel comfortable in their new environment. However many companies fail to fully realize the importance of this introduction, its effect on morale, motivation and future productivity.

All of us, at one time or another, have had a first day on the job. We remember what it was like to be inundated with new information and processes and being uncertain of how to apply it all. Some of us may have experienced the “sink or swim” scenario and were put to work immediately with little instruction or guidance and expected to learn as we went. As our understanding of humans in the work environment increases, new technology and processes are invented, new workplace legislation and precedents come to pass, and competition continues to increase, the “old sink and swim” method can wind up being a determent both to the employees success and the company’s bottom line.

Company orientation is your opportunity to lay a solid foundation for a productive, loyal, and healthy relationship with your employees. When workers understand and implement correct and efficient operating procedures, productivity is much higher, workplace accidents are fewer, and the quality of the product will be better. When workers are more knowledgeable, they feel more secure and are more likely to be “on-board” with company goals and objectives. When employees see how they “fit in” to the “overall picture”, you are likely to have a happier, more motivated workforce that sees their employment with you as an investment into their future as your decision to hire them was an investment in the company’s success.

Process vs. Program

It is important to think of orientation as a process rather than a program. Human beings, when exposed to new information, go though a cognitive process before that information can be completely understood and absorbed into long-term memory. It is unrealistic to expect a new employee to capture, understand and retain all of a company’s policies and procedures within a few hours or even half-day of company orientation. Employers should plan to spend at least a day on this effort. Preferably this time should be spread out into multiple sessions over several days to allow the employee time to digest the information and formulate questions. Additionally it is critical to update the employees on changes in the company’s policies and procedures. Time spent on a quality orientation will reduce the headaches and problems that will undoubtedly arise if employees are uncertain about their role in the workplace.

Objectives:

• To reduce startup-costs -
  Proper orientation can help the employee get “up-to-speed” much more quickly, thereby reducing the costs associated with learning the job such as errors and downtime.


• To reduce anxiety -
  An employee, when put into a strange, new situation, will experience anxiety that can impede his/her ability to learn the job. Proper orientation helps to reduce anxiety that results from entering into an unknown situation and helps provide guidelines for behavior and conduct, so the employee doesn’t have to experience the stress of guessing. Additionally supervisors spend far less time correcting undesired activities and actions.


• To reduce employee turnover -
  Employee turnover increases as employees feel they are not valued or are put into positions where they can’t possibly do their jobs because they don’t know what is expected of them. Orientation shows that the organization values the employee by giving them the tools and information that will help them to succeed on the job.
  


• To save time -
  Simply put, the better the initial orientation, the less production time supervisors and co-workers will have to spend “showing”, “telling”, and answering questions.
  


• Develop realistic job expectations & foster positive attitudes -
  It is important that employees learn early what is expected of them, what to expect from others, as well as learning about the values and philosophies of the organization. While people can and do learn from experience, many unnecessary, costly, and often dangerous mistakes can be avoided with a thorough orientation.

Hispanic Employees - Why don't they learn English?

No one can deny that the face of our workplace is changing at an alarming rate. We have new technologies, laws & regulations to follow, new customers with different demands to meet, and now we have a new language spoken in the workplace to boot. With the dramatic increase of Hispanic immigrants into our workforces, Spanish is becoming the second language on the job in many labor-intensive industries. This can be very frustrating for supervisors and other English-speaking employees when trying to communicate with this new group and understand them. “They are in OUR country now! Why don’t they learn English?” I have heard this complaint uttered by frustrated supervisors for as long as I have worked with culturally-diverse businesses. It is often uttered by the very same people who have chosen to hire Hispanic immigrants because of their availability and their impressive work ethic. To understand the answer to this question I would like to tell you a hypothetical, but realistic story, of a Hispanic construction worker named Juan:

Juan’s Story

Juan, a father of four, is from a rural community outside the city of Zacatecas, Mexico. He struggles to earn about $60 a week working in a textile mill in the city. At the end of the week he will have to spend about $50 dollars of that just to put food on the table. Juan hears stores from many friends and relatives that in the U.S. there are jobs paying $600 dollars PER WEEK! In order to provide for his family, Juan risks his life to cross the border into a new land, new culture, and a new language having no idea where his next meal will come from or where he will ultimately be. He has been told by friends and relatives that have come before him that there are good jobs available in construction in the Carolinas so he slowly makes his way up from Texas half-way across the country to North Carolina where he shows up on the doorstep of his cousin, Carlos who lives in a small one-bedroom apartment shared by 5 other Mexicans men. Carlos is working for a small concrete sub-contractor nearby and offers to take him to work the next day to see if he can get him hired on. The contractor has been struggling to find enough people to get the work done and offers him a job immediately based on his cousin’s recommendation.

Two months pass, and Juan has been working non-stop for the contractor 60 hours-a-week earning 8 dollars an hour pouring concrete. On the job, Juan is put in a work crew with several other Mexicans who happen to be from rural areas not far from Zacatecas and Juan immediately feels comfortable working with them. They speak the same language but more importantly they have the same national and local roots. Juan works as hard as he can so his supervisor will be happy with him and he can keep his job. His supervisor Bill, tall loud-spoken man from Davidson County, occasionally shouts things to him in English, moving his hands and gesturing firmly. Juan has picked up a few English words while on the job but feels intimidated by his supervisor and is afraid to say much for fear of sounding foolish. Nervously, Juan smiles to him and nods his head, not wanting to risk Bill becoming displeased with him. The next chance he gets he asks Carlos what was said. Carlos just tells him to keep doing what he’s doing. Juan would like to be able to speak English but it seems so hard and having only a 6th grade education, he feels that he is not smart enough to really learn it – he wouldn’t know where to start. Besides he is so tired at the end of the day and it so much easier just to go home with Carlos and his roommates who speak Spanish and that live in a neighborhood where most everyone else does too. Even the owner of the store on the street corner, where he wires most of his paycheck to his family in Mexico, speaks Spanish and sells him most everything he needs.

Supervisors much have a cross-cultural perspective

Being willing to see things from the perspective of the Hispanic employee is the first step in crossing workplace language and cultural barriers. If you are a leader in your company, it is you who must take the responsibility to provide the tools and support necessary so that the people building your products have what they need to be successful. If there is a communication problem it really is your responsibility to reach out to your Hispanic employees. Be friendly and sensitive to their situation. You don’t have to become fluent in Spanish – but learning a few words and customs will go a long way to making them me comfortable with you. Before you know it, you and your Spanish-speaking employees will learn to “meet each other halfway”. I have found that the cultural barrier to be a far more formidable barrier than the language barrier. By simply learning more about your Hispanic employees, you will discover that the “language barrier” is not as big as you think.