Managing Immigrant Labor

Many landscape contractors employ Hispanic workers. But how should they respond to anonymous letters charging that they have employed illegal aliens - and threatening to turn them in?

Gempler’s Alert, a newsletter of agriculture/horticulture safety and employment lawn compliance based in Belleville, Wis., pointed out one such example of a Pennsylvania grower who received such an unsigned letter, which “advised” the grower “to try to rectify the problems, before you are fined.”

The letter also stated, “I have the Social Security numbers and names that they [the alleged undocumented workers the writer named] use, and I am turning them into the Social Security Administration as well as to the immigration office, along with the farms and factories for which they have worked.”

“I am hoping that, being you are a business, you would not like problems with the law, that you will no longer hire or employ these people to work for you, and that you will carefully select your next employees,” the letter continued.
So, how should this grower respond? Gempler’s asked Dave Whitlock, an immigration attorney with Fisher & Phillips LLP in Atlanta, Ga., what the grower should do.

“I generally advise my clients in this situation to ignore anonymous letters as not having any validity,” Whitlock said.

However, he said if the grower wants to reassure herself, “she can pull out the I-9 documents she received for those individuals who were named and double check them to reassure herself that the I-9 documents she received reasonably appear to be genuine and reasonably appear to belong to the worker.

“Do not call the individuals in unless there appears to be some irregularity with the documents presented,” Whitlock added.

Assuming there's no problem with the documents as far as the grower can tell, she has done what she needs to do in order to comply with the law, he said.
If the documents do not reasonably appear to be genuine or do not reasonably appear to belong to the worker, the grower should ask the worker to produce valid documents. If the worker cannot do so, the grower should terminate the employment relationship immediately, Whitlock advised.

“Although in this case the grower might face a penalty for having employed a worker with inadequate or insufficient documents, there is no assurance that the anonymous informant will actually contact INS [the U.S. Immigration and Naturalization Service],” he noted. “Moreover, even if INS eventually conducts an audit, the grower is less likely to be penalized if the worker was discharged as soon as the problem was discovered.”

REMINDER: The Immigration and Control Act of 1986 (IRCA) requires employers to properly complete I-9 forms for all workers (including part-time and seasonal workers) hired since Nov. 6, 1986. Completing this process includes examining the I-9 documents a worker chooses to present to establish identity and work eligibility.

If a document reasonably appears to be genuine and reasonably appears to belong to the worker, you are required to accept it. You are not expected to be document expert, and, in fact, examining a worker's I-9 documents too closely could result in charges of discrimination.
For more information, contact Attorney Dave Whitlock at Fisher & Phillips LLP in Atlanta, Ga., Ph: 404/231-1400, or visit www.gemplers.com/alert.htm.