Immigration Catch 22: Part DeuxThe new complaint is that the Social Security Administration sent Meg Whitman a letter in 2003 (six years before she fired her fraudulently-documented housekeeper) noting a discrepancy in her social security number. Does this mean she failed to take appropriate action to fire her sooner, and therefore has managed to be both a scofflaw aider/abettor of immigration fraud and an ice-cold Simon Lagree? Just to show you how crazy this story can get, the Ninth Circuit (which includes California) has ruled that receipt of a Social Security no-match letter is not “just cause” for firing the worker when the worker is covered by a collective bargaining agreement; immigration advocates assert that this standard applies to all employers. What Whitman did, apparently, was turn the no-match letter over to the housekeeper with instructions to handle it. Was that enough? Too much? Both at once? What a sorry state of the law.
Nor is this a question of hypothetical impact and of interest only to nitpicking immigration-law buffs or people running for high office. Although I missed this news item when it happened several weeks ago, I now see that the DOJ has sued the community college system in Maricopa, Arizona, for illegal discrimination in hiring because it required non-citizen job applicants to show green cards. (Well, OK, maybe it still doesn't matter to most people, only to those on the DOJ hit list, like citizens of Arizona.) I really have not been paying attention, because I did not know that the Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from demanding certain kinds of documentation until after the hiring decision is made. Even then, their options are strictly circumscribed. Per the EEOC website:
Employers should not ask whether or not a job applicant is a United States citizen before making an offer of employment. The [IRCA] makes it illegal for employers to discriminate with respect to hiring, firing, or recruitment . . . based on an individual's citizenship or immigration status. . . . IRCA requires employers to verify the identity and employment eligibility of all employees hired after [1986], by completing the [I-9] Form, and reviewing documents showing the employee's identity and employment authorization. The law prohibits employers from rejecting valid documents or insisting on additional documents beyond what is legally required for employment eligibility verification . . . based on an employee's citizenship status or national origin. For example, e.g., an employer cannot require only individuals the employer perceives as "foreign" to verify their employment eligibility or produce specific documents, such as Permanent Resident ("green") cards or Employment Authorization Documents. It is the employee's choice which of the permitted documents to show for employment eligibility verification. As long as the document appears reasonably genuine on its face, and relates to the employee, it should be accepted. . . . Because of potential claims of illegal discrimination, employment eligibility verification should be conducted after an offer to hire has been made. [emphasis supplied]One Maricopa applicant produced a California driver’s license, Social Security card, and a Department of Homeland Security form attesting to his permanent legal status, but he was still asked to fill out more immigration paperwork and present a green card. When he failed to present a green card, his job offer was withdrawn.
If you don't check enough, you may get raided for hiring illegals. Federal immigration law says hiring "an unauthorized alien" can result in fines of up to $3,000 per worker. If you check too much, you may be sued for discrimination. The Maricopa suit seeks damages of $1,100 per applicant. It all depends on whose campaigns you've been contributing to, I suppose. If you're a conservative running for office, you may be lucky enough to be sued under both standards.
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