286). Employers have, since the Immigration Reform and Control Act of1986 (IRCA), been obligated to function under the laws that govern verifying applicant/employee citizenship, and which assigns costly fines to companies that do not comply with the 1986 guidelines of verification (Olds Som and Momblanco, 2006, p. 286). However, these rules were not enforced, and employers were not, for the most part, fined.
That has now changed. At present, because of the threat posed by international terrorism, and because of the burden on the states arising out of illegal immigration, which is collapsing some state social structures, which means that taxpayers are supporting the burden of illegal immigration in ways that make the arguments for workers who perform low income and unwanted jobs moot in the face of the cost of healthcare, education, legal and social services that have become burdened with supporting the illegal immigrant population.
Now, employers are faced with the prospect of documenting workers, and ensuring their status in the United States is a legal one. Additionally, court cases like one against Travelodge, where the courts determined that a Social Security "no match letter," which would suggest that the worker is not in the legal U.S. Social Security system, and the logical conclusion is, therefore, that the worker is undocumented; is not grounds for terminating an employee (Bacon, 2001, p. 15). These kinds of cases further complicate the role of the human resource office in complying with requirements for worker status verification, paperwork, and legal processing and representation against claims that arise against employers from the government and workers. Human resource offices must now answer the questions of:
What is the current system for documenting workers, and how effectively does it work?
What is the cost of documenting workers?
What are the costs of failing to document workers?
What are the legal ramifications of failing to document workers?
What are the legal ramifications of documenting workers?
What additional responsibilities must employers assume in documenting workers?
The Immigration Reform and Control Act of 1986 (IRCA) has four requirements of employers (Tunnell, Zimmermann and Seipel, 1993, p. 36):
Not to hire unauthorized aliens.
To verify the identity and work authorization for every new employee.
Not to discriminate on the basis of citizenship or national origin.
To recognize the amnesty rights of certain illegal aliens who are eligible for temporary or permanent resident status in the United States.
As we can see from these four requirements, the Act causes employers to consider not just the illegal status of the worker, but the worker's potential legal status. This is a unique area of understanding for which the HR staff must be trained and educated in regard to in order to make the best decisions on behalf of the company. Additionally, we see here, in item number three, that the employer is prohibited from discriminating on the basis of citizenship or national origin. This is a slippery slope for the employer, who then takes on a reporting role, by way of reporting the employee or new hire as an undocumented individual seeking employment. The Act imposes fines on any employer who knowingly hires an undocumented worker; but also prohibits the employer from discriminating - meaning using the criteria of the person as an undocumented worker - as a reason for denying the applicant work. This might be an example of why the Act has not previously been enforced.
HR person is responsible for packaging a new hire. The HR person processes the new hires' IRS information, state and federal (FICS) withholding taxes, as well as Federal Unemployment Tax Act (FUTA), unless the new hire is an independent contract, in which case that individual would be responsible for his or her own withholdings; but the employer would still issue the 1099 statement of earnings (Tunnell, Zimmermann and Seipel, 1993, p. 36). Also, if the new hire is a foreign national who is in the country legally, the employer must, or HR person for the employer, would be responsible for issuing the I9 statement (see Index I), which documents the employee as a non-citizen, and, nonetheless, makes the proper withholdings on behalf of the employer. The employer can be fined for failure to issue the proper work-employee-status documentation and withholdings (Tunnell, Zimmermann and Seipel, 1993, p. 36).
A web site for assisting human resource personnel and others in achieving compliance with the various forms required by the government for documenting and reporting on aliens in the United States, either legal or illegal, can be found at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=db029c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD
This is an official United States Government site, specifically for addressing concerns, questions, and information related to aliens in the United States. The site includes additional non-Federal Government forms that are required by the individual states for reporting purposes. This site is a valuable resource tool for HR personnel, but it involves pages and pages of forms and instructions, which can be time consuming. The HR personnel must take education and training in order to become proficient in the forms and requires imposed upon employers by states and the Federal Government in properly documenting and reporting on alien employee statuses, which can change from legal to illegal for failure to file the proper extensions and paperwork. As can be seen upon examination of the forms, they can be difficult to navigate, and may even require the HR person to offer the employee individual, one-on-one assistance in completing the form.
Chapter 2 - Literature Review
A query of the online sources for books, journals, magazine articles and newspaper articles that would satisfy this research study resulted in more than 2,000 hits per publication type. In order to get the most recent and pertinent information and sources on employer verifying and reporting employee and worker statuses; journal articles proved to be the best source for information that was thorough, manageable, and up-to-date. For the historic research, such as the Immigration Reform and Control Act of1986, books have proven to be the valuable resource. While magazine and newspaper articles have proven useful as support and structure for segueing between ideas and topics.
The book which serves as the centerpiece for this research is Nicholas Laham's Ronald Reagan and the Politics of Immigration Reform (2000). This book breaks down, in detail, the responsibilities of employers, vis-a-vie their HR offices, in verifying and documenting worker statuses.
Anatomy of a Public Policy, by Michael LeMay (1994), is essential to this paper in that it deals with the progressive nature of immigration reform, and analyzes IRCA. A chapter of the book is devoted to evaluating IRCA as a working document. The book also examines proposed immigration policy (1990), which is the legislation that is now being considered by Congress as proposed immigration reform policies.
The ramifications for employers who fail meet the federal and state requirements for documenting worker status is twofold: financial, by way of fines imposed upon the employer, and legal, arising out of defending the fines imposed, and, or, defending the verification of the status process, the worker response on a legal level in bringing suit against the employer, and suits by state and federal agencies, or agencies like the ACLU, against the employer. By way of category of potential claim against the employer, and claims which the employer must defend, the potential in legal costs and action is enormous. To benefit the research her with the most up-to-date and well interpreted legal criteria impacting employers and their HR departments, journals proved to be the best source of information.
Writing for Monthly Labor Review (1987), Richard R. Nelson provides a breakdown of the laws passed on a state level, that helped states be in compliance with the 1986 Act by which companies have been governed since the federal government passed the Immigration Reform and Control Act of1986 (Vol. 110, 1987, p. 49). This article was useful in helping the author of the research presented here to navigate through the Act, to find those parts of the Act that pertained specifically to the documentation of worker status.
2.4 Magazine Articles
John D. McCann, writing for Security Management (Vol. 38, 1994, p. 72), provides a good introduction for the discussion of