Food for Thought – HR 7 What Does the Law Say? Title 8, USC 1323

Food for Thought – HR 7

What Does the Law Say? Title 8, USC 1323

There is a great deal of discussion about legal and illegal immigration/workers on the political front.  One side wants new voters who are dependent upon the party, and the other wants cheap labor for business.  We, the public, are caught between the two. 

Regardless of feeling compassion and empathy for people wanting a better life for themselves and their families, the law is the law.  Either people decide to follow the law, or they make the decision to ignore it, and risk the consequences.  Intentions, reasoning, and desperation aside; this applies equally to those who cross the border illegally, and those people who entice them, smuggle them, harbor them, and use them in order to circumvent the law and take advantage of what they perceive to be “cheap labor”. 

As of 1986, all US employers are required to make sure that all employees are authorized to work in the U.S.

Immigration Reform and Control Act of 1986 (IRCA)

“Public Law 99-603 (Act of 11/6/86), was passed in order to control and deter illegal immigration to the United States. Its major provisions stipulate legalization of undocumented aliens who had been continuously unlawfully present since 1982, legalization of certain agricultural workers, sanctions for employers who knowingly hire undocumented workers, and increased enforcement at U.S. borders.”

https://www.uscis.gov/tools/glossary/immigration-reform-and-control-act-1986-irca

TITLE 8 - ALIENS AND NATIONALITY CHAPTER 12 - IMMIGRATION AND NATIONALITY SUBCHAPTER II - IMMIGRATION Part VIII - General Penalty Provisions § 1323.

Unlawful bringing of aliens into United States

(a) Persons liable

(1) It shall be unlawful for any person, including any transportation company, or the owner, master, commanding officer, agent, charterer, or consignee of any vessel or aircraft, to bring to the United States from any place outside thereof (other than from foreign contiguous territory) any alien who does not have a valid passport and an unexpired visa, if a visa was required under this chapter or regulations issued thereunder.

 (2) It is unlawful for an owner, agent, master, commanding officer, person in charge, purser, or consignee of a vessel or aircraft who is bringing an alien (except an alien crewmember) to the United States to take any consideration to be kept or returned contingent on whether an alien is admitted to, or ordered removed from, the United States.

D. Conley

Food for Thought – HR 6 Alternatives to New Hire Questionable Questions?

Food for Thought – HR 6

Alternatives to New Hire Questionable Questions?

After reading the previous posts, you should have a good understanding of what you need to do with the documents presented by new hires, and you should also know that there are some questions that you should not be asking potential new hires.

So what can you ask?  Here are a few lists of “appropriate” and “non-appropriate” questions that you can review, so that you can formulate the questions you want to ask your candidates.

From Michigan Technological University -

https://www.mtu.edu/equity/hiring/pdfs/appropriate-and-inappropriate-inquiries.pdf

From Kettering University - https://my.kettering.edu/sites/default/files/resource-file-download/Interview%20Questions%20Not%20to%20Ask_1.pdf

Andrews University also has a list of good and bad questions, but they go a step further in speaking about Legal Issues resulting from statements by a hiring manager that could be misconstrued as “promises” about the employment, and about “negligent hiring”.

https://www.andrews.edu/documents/employment/interview_instructions.pdf

D.Conley

Food for Thought – HR 5 New Hire Questionable Questions?

Food for Thought – HR 5

New Hire Questionable Questions?

In the previous posts, we touched on the I-9 form, non-discrimination towards workers as well as non-discrimination toward the forms of identification being presented, and the need for “due-diligence” when inspecting documents being presented.

In the last post, HR 4, we approached interviewing prospective new hires, and the subjects that are considered to be “taboo” when interviewing, or hiring new personnel.  We are not to ask about:  Race, Age, Religion, Color, Place of Birth, Disability, Marital Status or Children.

Even an experienced interviewer can mistakenly open the door to a taboo topic by searching for some “common ground conversation” with a potential new hire.  This only opens the door to liability.  I once had a hiring manager ask me why they should hire me instead of a younger candidate. I answered the question quite creatively, but I should have politely excused myself from the interview right then.  I didn’t, which was a shame.  Hind-sight is always 20/20.

There are different ways to gather information, it just depends upon what questions you ask, and how you ask them.  In reality, what you really want and even need to know, (besides if this person is qualified, and if they would be a good fit for your company); is if they are willing and capable of meeting the requirements and demands of the job for the terms you’re offering.  That’s really the bottom line.

In an article by Megan Elliott on the Money and Career portion of the www.cheatsheet.com website, the 10 questions you probably never thought were illegal are discussed, as well as the reasoning behind the illegality of those questions.

10 Interview Questions You Didn't Know Were illegal

D. Conley

Food for Thought – HR 4 - Legal Pitfalls of Hiring Undocumented Workers

Food for Thought – HR 4

Legal Pitfalls of Hiring Undocumented Workers

The job interview is an interesting process.  It’s kind of a simultaneous dual sales-pitch.  The company wants to sell itself, and the applicant wants to sell him, or herself for the position.

It can be challenging to find a qualified candidate who is a good fit, and can bring value to the company, but…is the person authorized to work in the US?

The major draw for illegal immigrants to come to the U.S. is a job.  Companies looking to capitalize on cheap labor, while bypassing the law, only help to propagate illegal immigration, and keeps more US workers out of the job market. So…the premise of the law is that by eliminating the hiring of illegal workers, it will reduce the desire to disregard laws of legal entry.  If there is no job waiting for them, why risk the trip?  In theory, it works great…as long as everyone obeys the law.

Since 1986, every US employer has been required to verify the authorization of each new person hired, at the time they are hired, and to maintain those records.  The I-9 form can be located at the USCIS website – www.uscis.gov/forms.  There is also a handbook available for download that details the instructions for filling out the form, in addition to the legal obligations of the employer.

The instruction handbook can be accessed here - https://www.uscis.gov/sites/default/files/files/form/m-274.pdf

In another article from NOLO.com, Deborah Dyson talks about some of the legal pitfalls of hiring undocumented workers, that every hiring manager, business owner should know.

Legal Pitfalls of Hiring Undocumented Immigrants

In future posts, we’ll discuss what the laws state, and relate the consequences of not following the law.

D. Conley

Food For Thought - HR 3 - Hiring Foreign Workers

Food For Thought – HR 3

Hiring Foreign Workers

In the previous two installations, we addressed the need for fairness to all applicants, and the need to use our “Due Diligence” and looking at the documents that were presented to us by our new hires.  The importance of this is illustrated in the following from Title 8 USC 1324a, para (3) as shown below:

" U.S. Code › Title 8 › Chapter 12 › Subchapter II › Part VIII › § 1324a, Paragraph (3)Defense

"A person or entity that establishes that it has complied in good faith with the requirements of subsection (b) with respect to the hiring, recruiting, or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring, recruiting, or referral."

After 1986, all US companies are required to verify that all new hires are authorized to work in the United States – again; the I-9 Form and the list of acceptable/approved documents.

There are other concerns facing companies and hiring managers.  Due to the litigious society we live in, you have to be careful when asking questions.  If not phrased properly, or if you ask the wrong things, you could very well face a discrimination suit. 

 For example:  you cannot ask about their birthplace or national origin; you cannot ask what religion they practice, or what religious holidays they observe, and you cannot ask how old they are.  These are just a few examples of questions NOT to ask.

In another NOLO.com article by Deborah Dyson, she brings up a few questions that every hiring manager should know.  “Do they have papers?  What if they don’t?  Can you ask if they have papers?” 

First Things You Need to Know About Hiring Foreign Workers

These are some of the points addressed, and are good reading for any business owner or hiring manager.

D. Conley

Food for Thought – HR 2 Document Examination

Food for Thought – HR 2

Document Examination

In the previous Post, Food for Thought – HR, we addressed the importance of non-discrimination for new hires as well as their paperwork, and the use of  “due diligence” and “good faith” when addressing documentation being presented by new hires.

Unless you’re a forensic specialist, no one expects you to be an expert, but what should you look for when examining the documents in front of you?

Please try to keep in mind that sometimes not having a specific document, or having a document returned, it doesn’t necessarily mean the person is attempting fraud.  Sometimes, especially with documents; life happens.  Fires, floods, storms, moving...all these things happen and sometimes documents get lost, and some are more easily replaced than others.

One thing to remember is, a missing or incorrect document may be reason to raise an eyebrow, but not necessarily an alarm.

An article, written by the staff of verifyi9.com, addresses the employers’ responsibility for some “common sense” when looking at documents, and shows some examples of what to look for.

Detecting Fake Documentation

More on this subject to come in future posts.

D. Conley

Food For Thought - HR - New Hire Documentation

Food for Thought – HR

New Hire Documentation

As we all know, when hiring new personnel; there are forms to be filled out, and copies of different forms of valid identification are required.

Enter the I-9 Form, which is easy enough to understand and fill out; it tells you what forms of identification you can use.  There is even a small box warning against discrimination; even against the forms that are being presented for identification by the worker.

BUT…what if the forms being given to you aren’t real?  We are all too familiar with the forms we see on a daily basis, and if we’re paying attention, deviations from what is considered to be the “norm” can raise an eyebrow.

Photo Courtesy SMU

It’s when we have the unique or seldom seen item that makes us take a moment to really take a look at it.  Different states have different driver’s license and identification cards that have information in different places.  There are Alien Residence cards, work visas, and “Green” cards that haven’t been green in years.  As I rarely see many of these, unless it was obviously made and sold in the Magic Kingdom, I’m going to have a hard time being able to accurately discern whether or not the document is real.

Here is the dilemma that business owners and hiring managers face.  It is not only wrong to discriminate against a qualifying candidate for a job; it’s illegal, and it can cost a business not only huge amounts of what would have been profit, it also can hurt the company “socially”, as well.

So, you don’t want to turn someone away who is legitimately and legally qualified to work in the US, but you don’t want to hire an illegal worker, either.

Fortunately, there is some help in what is called “Due Diligence”, or “Good Faith”, as stated in an article from NOLO.com by Nicole Kersey, she specifically addresses what employers need to do to help protect themselves and what to do if the documents being provided look suspicious.  What to do if the I-9 Documents Look Suspicious

More on this subject to come in future posts.

D.Conley