Verifying green cards not so easy

by Claude Solnik

Published: March 9th, 2009

North Star Concrete ended up in hot water when Suffolk County determined two of its employees didn’t have the right to work in the United States.
The company argued it had obtained documents and paid employees a union wage, so there was no financial benefit to hiring undocumented workers. But Suffolk County argued North Star had been lax and sought to bar it from county contracts.

“North Star’s position from the beginning was they complied with every requirement of federal law,” said Robert LaReddola, the Garden City-based attorney who represented North Star. “They [North Star] were being held to a higher standard than federal law.”

Farmingville-based North Star President Mario Salgado said his firm never intended to hire any undocumented workers.

“We thought were doing the right thing to make sure we had the proper employees,” Salgado said. “We were paying union scale. We paid benefits, the union wage, which was higher than the prevailing wage.”

North Star and Suffolk late last year reached a compromise in which the county agreed to let the company continue to bid on county work. North Star in return paid $2,000 to settle the case.

However, Suffolk County is continuing to monitor contractors who work on county projects. And the federal government has been cracking down on companies that employ workers who don’t have the right to work in the United States.

“We’re clearly moving toward more oversight,” said Dawn Davidson Drantch, director of employee relations and counsel for The Alcott Group, a Farmingdale-based professional employer organization providing human resources services.

Mitchell Zwaik, an immigration attorney based in Bohemia, said, “The move is toward enforcement of the rules more than toward changing the rules. The basic principle hasn’t changed.”

Employers must complete I-9 forms within three days of hiring, obtaining documents showing identification and right to work. But employers have traditionally filed and forgotten these documents.

“Unless the immigration people do an audit, nothing much comes from them,” said Rick Gibbs, senior human resources specialist at Houston-based Administaff’s New York City office.

These I-9s, required in the1986 Immigration Reform and Control Act, can be based on forged, inaccurate or inappropriate documents. That hasn’t been a problem for employers, since the law requires only that they seek employment documents, not vouch for their authenticity.

“It’s not up to the employer to police the I.D.,” Drantch said. “The employer just has to look at it and make sure it looks legit.”

In addition, Zwaik said employers who refuse to accept documents can be accused of discrimination. “How is an employer to know whether a green card is valid?” Zwaik said.

But the federal government has been upping the stakes amid concern that many companies are employing workers not entitled to employment. The Department of Homeland Security set up E-verify, a program that checks worker status electronically.

Although Congress created that as a voluntary system, then President George Bush by executive order made its use mandatory for companies with federal contracts of at least $100,000 as of February 2008.

“There’s one camp that believes there are issues with E-verify,” Drantch said. “It’s not accurate and could cause discrimination. The other camp believes it’s necessary to have a national database to check everybody to see if they’re legal to work in the United States.”

Drantch worries E-verify could end up delaying employment for many people who are entitled to work.

“I think the way the E-verify system works now is there’s a tremendous margin of error,” Drantch said. “You could turn somebody away from employment who’s eligible to work. And there are potential discrimination issues.”

She said E-verify could make some employers wary of hiring those minorities for whom legal status is more likely to be a problem.

“You have the potential to not look to hire certain ethnic groups because an employer might be afraid they might not be legal,” Drantch said. “And the employer might be afraid, whether it’s reality based or not, that it will bring the government looking over your shoulder.”

Zwaik said employers aren’t allowed to use E-verify selectively, but if employers use it, they must use it for all hires.

“You’re plugging into a government database that is frequently wrong,” he said. “That’s why a lot of employers don’t want to use the system.”
North Star, meanwhile, is working harder to verify workers’ documents, reviewing forms more carefully. “We’re making sure we have someone on top of that, that the documentation they give us is legitimate,” Salgado said. “We’re doing the best that we can.”