Immigration enforcement update
Immigration law should be of interest to any farmer using H-2A workers. Attorney Michael Sciotti with law firm Barclay Damon, LLP in Syracuse presented the topic at the recent Labor Road Show hosted by Cornell AgriTech in Geneva, NY.
Barclay Damon also operates offices in Albany, Boston, Buffalo, New Haven, New York City, Rochester, Washington, D.C., and Toronto.
“Sick leave policy is something you can be creative with,” Sciotti said. “You can use it as a motivation to get employees back. Employer response to complaints should be ‘Thank you. May I have another?’ even though you’re peeved. You have bullseyes on your backs.”
It’s illegal to reprimand or punish employees for complaining about company conditions or policies, but grumbling about their complaints is also ill-advised.
Employers should also keep abreast of any changes in immigration law that pertains to their operations and cooperate with law enforcement.
“Criminal liability scares me because you can fall into it,” Sciotti said. “If you speak to ICE, you must speak truthfully or it’s a felony. You don’t have to say anything except ‘Here’s my attorney’s card.’” Unfortunately, speaking out of turn often gets employers in trouble.
When an audit happens or an enforcement officer comes to the farm, Sciotti advised “having your house in order. Be as nice as pie.”
Remaining professional and courteous goes a long way.
“Recording them isn’t illegal, but it will probably irritate them,” he added.
He urged farmers to have I-9 forms completed for each employee, whether naturalized citizens or otherwise, and avoid “knowingly hiring unauthorized workers.”
For workers lacking I-9s, complete them immediately but date them accurately, as backdating these forms is a felony.
“Attach a note saying he didn’t have one and we don’t know why,” Sciotti said.
Employers also need to obtain a legitimate proof of identification such as a driver’s license or government-issued photo ID. The photo and name should match the person presenting it. The identification should look legitimate to a reasonable person. Otherwise, Sciotti said, it should be rejected.
Farms undergoing an audit can ask for an additional week to buy time to gather any missing forms. To help make the process easier and to avoid revealing unnecessary information, Sciotti said farm owners should keep all I-9 forms in one single file – not as a part of each employee’s personnel file – plus a list of every employee’s date of hire.
Any auditor or inspector should be able to provide their credentials upon request – and that doesn’t mean only a business card. Sciotti advised calling the Office of Homeland Security using the number listed on their website, not a number presented by someone stopping at the farm. Unscrupulous people posing as inspectors or auditors can steal employees’ identities.
Of course, farm owners and managers should maintain safe working conditions because it’s the right thing to do. But any time ICE agents notice unsafe conditions or other violations, they will report it to the appropriate authorities in OSHA, Sciotti said.
He has seen cases where an employer has two employees with the same name and the employer used the same ID for both. That’s a no-no. Fake IDs are not uncommon, as it’s easy to purchase these online.
“Pay attention,” he said. “It’s easy to fake anything. As long as you do due diligence, you’re okay.”
It also pays to keep copies of identification documents in the personnel files, but consistency on this and other HR policies is key to show that all employees are treated the same, regardless of their country of origin.
Employees who change their names are not required to get a new I-9.
If an employee’s status shifts from using a fake ID to get an I-9 to possessing a legitimate ID for an I-9, Sciotti said ICE may notice the difference.
“I’m not sure I would take that risk of retaining him,” he said. “Call the Department of Labor in good faith.”
Overall, he said that with any hiring matters, employers should “trust but verify.”
“If you talk with ICE or the government, you have to speak truthfully,” he concluded.
