Solutions Source: Labor issues

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When Congress failed to pass immigration reform earlier this year, states began drafting their own laws aimed at an illegal work force. To complicate matters, Homeland Security passed a hard-line employee verification rule through the Social Security Administration.

Beginning Jan. 1, 2008, Arizona employers must verify their employees are “present in the country legally.” Businesses caught employing an illegal workforce face suspensions of their business licenses.

A second offense may result in the “business death penalty” -- permanent revocation of an employer’s licenses to do business in the state.

“The Arizona legislation is some of the most far-reaching and troubling state legislation yet,” said Craig Regelbrugge, vice president of government relations at American Nursery & Landscape Association (ANLA).

“It essentially mandates electronic eligibility verification while doing nothing to provide access to a legal workforce. If implemented as written, Arizona green-industry employers will face this Hobson’s choice: Fire much of your workforce, or put your head in the sand and face losing your business license,” he said.

In September, the National Immigration Law Center, American Civil Liberties Union and other groups filed a federal lawsuit challenging the Arizona law, dubbed the Legal Arizona Workers Act. The lawsuit alleges the Arizona law conflicts with federal immigration law and the U.S. Constitution. The lawsuit claims the Arizona law requires employers to verify worker employment eligibility through the flawed Basic Pilot Program, a federal verification database, which was intended to be voluntary. The suit also claims that sanctions imposed by the law exceed what the federal government allows.

Flawed law

Gov. Janet Napolitano signed the bill after Congress failed to enact immigration reform. She’s also critical of what she calls “defects” in the bill.

She may call a special session of the Arizona Legislature to repair the bill’s flaws.

Those flaws include: lack of critical infrastructure protection; a blanketed revocation provision that could shut down an entire operation instead of one location; lack of funding; and lack of discrimination protection.

Under the new law, the attorney general’s office must establish a new database and investigate complaints with a $100,000 budget, according to the governor’s office. And only $70,000 was appropriated to notify employers of the change in the law.

“Immigration is a federal responsibility, but I signed HB 2779 because it is now abundantly clear that Congress finds itself incapable of coping with the comprehensive immigration reforms our country needs,” Napolitano said in a released statement. “I signed it, too, out of the realization that the flow of illegal immigration into our state is due to the constant demand of some employers for cheap, undocumented labor.”

Tough talk

Tennessee Gov. Phil Bredesen signed immigration legislation June 26. It assigns penalties and fines for businesses employing illegal workers. The bill makes it against the law to “knowingly” or “recklessly” employ an illegal alien.

An employer found in violation of “knowingly” employing an illegal alien would be charged with a Class E felony, punishable by a fine not to exceed $10,000. A violation of “recklessly” employing an illegal alien is a Class A misdemeanor, punishable by a fine not to exceed $2,500.

No-match letters

Earlier this year, Homeland Security announced it was working in tandem with the Social Security Administration (SSA) to flush out undocumented workers. SSA was scheduled to send 140,000 social security no-match letters. The letters are only issued to employers who have more than 10 employees with no-match issues.

However, a federal judge in San Francisco issued an order on Aug. 31 that temporarily blocks the government from implementing the new rule, according to Bob Dolibois, executive vice president of ANLA. The judge’s order also stops the SSA from sending the no-match letters.

The order follows a lawsuit filed in August by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union, the National Immigration Law Center (NILC) and various local labor groups. A hearing was scheduled for Oct. 1 before U.S. District Court Judge Charles Breyer.

The judge’s order “does not signal anything about the ultimate merits or likelihood for success,” Dolibois said. “It does, however, buy just a little bit of time for employers struggling with their own plans for compliance.”

If the lawsuit fails and the no-match rule continues, employers who receive a letter have 90 days to resolve the discrepancy. If verifiably legitimate documents can’t be provided, the employer must fire the worker in question.

“Employers aren’t hiring undocumented workers because they want an illegal workforce; they are hiring them because Congress has failed to provide them access to a legal workforce,” Regelbrugge said. “We are putting good actor employers between a rock and a hard place. Adhere to the rule and lose a large segment of your workforce and possibly your operational viability; or refuse to comply and subject yourselves to serious liability.”

More than $519 billion in wages has been reported to the Social Security Administration but cannot be matched with workers, Regelbrugge said.

“The total is presumed to reflect the large number of undocumented immigrants working in the country using fake Social Security cards. The no-match rule will drive some employers off the grid and many workers off the books, jeopardizing billions in federal revenues.”

Characterizing labor

More than 40 percent of revenue from the green industry goes to labor, yet little is known about the labor pool’s demographics.

Hannah Mathers, an extension specialist at Ohio State University, surveyed 1,548 nursery employees to better understand the makeup of green-industry workers. Mathers and graduate student Alejandra Acuna[tilde over n] surveyed workers in Ohio, Michigan, Delaware, Tennessee, Florida, Indiana, Kentucky, Arizona and Rhode Island.

“It’s surprising that so much of the gross sales are going to labor salaries, but so little is known of that labor force,” Mathers said. “It’s been assumed that the majority of the green-industry labor force is Spanish-speaking, but there was no formal information to support that belief. Now that information is available.”

Businesses that take a greater interest in their labor force can parlay that information into successful business practices, Mathers said.

More than 70 percent filling green-industry jobs are general laborers aged 18-34 with a middle-school education.

The number of women migrant laborers has risen from fewer than 5 percent in 2003 to almost half in 2007.

Only 22 percent of workers understand English, creating communication barriers in the workplace. Such barriers can impact job performance and productivity, Mathers said.

The primary source of workers’ technical information was the supervisor, indicating that workers are receiving little to no information outside of their working environment. Sixty percent of nursery workers have not received training courses related to their work, and only 8 percent have access to such courses.

Nearly 80 percent of the workers were interested in attending work-related classes, such as plant, insect or disease identification, and equipment safety.

“Nearly 15 percent of the United States population is Hispanic, seeking work in service-oriented and labor-intensive businesses, like the green industry,” Mathers said. “The greenhouse industry is the fifth most important agricultural sector in the country. In Ohio, labor demand is anticipated to increase an average of 3 to 5 percent over the next several years.”

First-hand account

Another Ohio State program aims to better understand how to effectively communicate and work with migrant labor. A group of OSU Extension educators traveled to central Mexico earlier this year to experience, first-hand, rural Mexico and Mexican agriculture and how they relate to Mexican migration in the United States.

“The immigration issue is so much in the public view now that we must become better informed and be able to competently discuss the various issues with our clientele,” said Don Breece, a farm management specialist at the OSU Extension Center at Lima, who participated in the trip.

Claudio Pasian, an OSU Extension horticulturist, plans to use his experience from the tour to help implement training programs for growers.

“Now that I have an even better understanding of Mexican social organizations, I can provide even more useful information to those seeking to improve their working relationships,” Pasian said.

The tour helped Jim Skeeles, OSU extension educator for Lorain County, understand the similarities between the United States and Mexico.

“The similarities between our two countries were more striking to me than the differences,” Breece said. “Agriculture truly is a universal language.”

For more: American Nursery & Landscape Association, (202) 789-2900; www.anla.org. Hannah Mathers, OSU, (614) 247-6195; mathers.7@osu.edu. Claudio Pasian, OSU, (614) 292-9941; pasian.1@osu.edu.

Department of Labor helps determine poster requirements

Some of the regulations enforced by the Department of Labor (DOL) require notices be posted in the workplace. The DOL provides electronic copies of the required posters, and many posters are available in other languages.

A sampling of required posters includes Fair Labor Standards Act; Job Safety and Health Protection; Family and Medical Leave Act; and Equal Employment Opportunity Act.

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Not all employers are covered by each of the department’s regulations.

Not sure which posters you’re required to display? Find out at the DOL’s Employment Laws Assistance for Workers and Small Business Poster Advisor at www.dol.gov/elaws/posters.htm.

- Kelli Rodda 

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New Homeland Security rules put burden of worker affirmation on employer

Monte B. Lake, immigration and employment law consultant for the American Nursery & Landscape Association

The Department of Homeland Security’s new rules for managing Social Security mismatch letters will have a dramatic impact on growers. Under the rule, employers will have a period of up to 90 days from the date of receipt of a no-match letter during which to determine, in conjunction with affected employees, whether a social security number and related name can be verified with the Social Security Administration.

A major difference between the new rule and prior SSA directions related to no-match letters is that under the new rule the employer has an affirmative duty to verify the number and name, rather than leaving the responsibility solely with the employee. Failure to do so could result in loss of the so-called “safe harbor” for the employer.

This could result in a large number of employee terminations in the many anticipated instances where the social security numbers can not be verified.

A number of immigration reform bills introduced during the last several years would require mandatory electronic verification of work authorization and identity documents.

This process would require all employers to check alien documents and social security numbers and names through Homeland Security and SSA databases to confirm the validity of the documents before an applicant could be hired.

These bills all would provide employers that complied with the specific procedures mandated for the electronic verification process with a good faith defense or “safe harbor” if workers who were authorized during the verification process later were determined to be unauthorized to work.

A mandatory electronic verification process has not yet been enacted.

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Currently the voluntary prototype for such a process is called the Basic Pilot Program or E-Verify system.

Monte B. Lake is the immigration and employment law consultant for the American Nursery & Landscape Association and partner at Siff, Cerda and Lake LLP, (202) 789-8644; MBL@scllaw.com.

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