The Day after the Mass Deportation

August 27, 2015

What would mass deportation really look like for small and middle-sized employers?

The whole thing is fantasy, of course, much like apocalyptic late ‘50s science fiction where the last survivor of some holocaust is startled by the sound of his phone ringing.

So, since it’s fantasy, we don’t have to deal with the logistics or economic consequences of removing 11 million people from the U.S., 8.2 million of whom have jobs. We don’t have to consider whether mass deportation would involve ICE vans zipping around to snatch people off the streets, a 20-year endeavor that would require building huge detention facilities or whether the effort might cost taxpayers between $400 and $600 billion, whether or not we build private prisons.

In fantasy, we wouldn’t have to deal with the fence, the Fourteenth Amendment, or the fact that some legislators smudge the difference between unlawful and lawful immigration.

Nope, we’ll keep it simple. Where would the holes be? Friday, you had employees; Monday they’re gone, on their way to El Salvador, Guatemala, Mexico or indefinite detention. Startled by the ringing phone, what do you do next?

Step, if you will, into legal twilight. In theory, there is no problem since employers are already required to verify that employees are legally permitted to work. Whether they choose to is another matter.

What Employers Must do to Verify Employment Eligibility

The Immigration Reform and Control Act of 1986 bars employers from hiring individuals, including undocumented aliens, who are not legally entitled to work in the United States.

Employers must verify that individuals are eligible to work by obtaining an Employment Eligibility Verification Form, known as Form I-9, and inspecting the required supporting documents within three days of the employee’s hire date. The employee fills out basic information such as his or her name, date of birth, address and Social Security number, and then the employer certifies that the employee has presented documentation confirming his or her right to work in the U.S.

These documents may include a U.S. passport, a permanent resident card or alien registration receipt card or a combination of documents, including a driver’s license and a social security card or a federal, state or local identification card and a birth certificate. There are a variety of ways of meeting the requirement of proof of identity and ability to work.

Employers who violate these provisions may be subject to civil penalties, back pay awards, hiring orders, the imposition of injunctive relief to end discriminatory practices, and attorney fee awards.  If the employee presents a document with a date of expiration, the employer will need to re-verify the employee’s continued eligibility on the date of expiration. Employers are generally not required to use E-Verify, the Social Security Number Verification Service, or any other third-party background check service to verify Social Security Numbers.

The proper and timely completion of Form I-9 for each employee provides an employer with an affirmative defense to an allegation that it knowingly hired an unauthorized alien. The law does not protect employers that have actual knowledge that a person lacks authorization (such as employers that knowingly accept forged documents).

Best Practices to Avoid Discrimination in Employment

Where there is a mismatch of information or other problem with eligibility documentation, employers may use a three-step process to confirm eligibility without running afoul of employment discrimination rules.

Step One: Employers should check their own records. Check the employee’s personnel records immediately to see whether the discrepancy was caused by a typographic transcription, or similar clerical error in the records or in communications to the SSA.

Step Two: Verify records with the employee. If the employer’s records are correct and the problem rests with information offered by the employee, the best choice would be to ask him or her to pursue and resolve the matter personally with the Social Security Administration with 90 days.

Step Three: If the employee does not resolve the discrepancy within 90 days, employers should document this fact and complete a new Form I-9 for the employee just as they would for a new hire. Of course, employers should not accept a document containing the questionable Social Security Number for purposes of this employment verification. If the employee cannot complete the new Form I-9 within three days, then employers must terminate him or her.

Legal Risks for Employers

Employers may be subject to civil and criminal penalties for hiring undocumented immigrant workers. Civil penalties range from a minimum of $375 per unauthorized worker for a first offense up to a maximum of $1,600 per worker for a third or subsequent offense. If employers are found to have engaged in a “pattern and practice” of hiring undocumented workers, they can be fined up to $3,000 per employee and/or imprisoned for up to six months.

What about Hiring Contractors?

Employers are not obliged to confirm the work authorization of anyone hired as an independent contractor. If, however, the employer knows or has reason to know that an independent contractor is not authorized to work in the U.S., the employer can nevertheless be held liable.

The Statistics

But what would life actually be like without all the people who are working without legal authorization? The impact of mass deportation on employers would vary widely by industry and region of the country. According to a recent study by the Pew Research Center

Unauthorized immigrants made up 5.1% of the nation’s labor force in 2012, numbering 8.1 million who were working or looking for work, according to previously published Pew Research estimates …. But as this new analysis shows, they account for a far higher share of the total workforce in specific jobs, notably farming (26%), cleaning and maintenance (17%), and construction (14%).

Nonetheless, the share of all unauthorized immigrant workers with management and professional jobs grew to 13 percent in 2012 from 10 percent in 2007, and the share with construction or production jobs declined to 29 percent from 34 percent.

There is considerable variation between regions of the country.  The states whose labor forces have the highest shares of unauthorized immigrants are Nevada (10.2 percent in 2012), California (9.4 percent and Texas (8.9 percent).

Leisure and hospitality is the largest industry among unauthorized immigrant workers in 14 states and the District of Columbia, generally in the West or Northeast, as well as Florida. In 11 states, which tend to be in the South, the construction industry employs more unauthorized immigrants than any other. Manufacturing is the dominant employer of this group in 11 states, largely in the Midwest.

While the sudden absence of these workers might appear as the lack of farm labor in California, it might be felt as the lack of construction workers in New York, hotel workers in Florida or meatpackers in Iowa.

Why Employers Hire Undocumented Workers

The evidence is anecdotal and highly laced with political vitriol. Some of the illegal hiring may be inadvertent, but that can hardly account for 8.2 million jobs. Many employers are prepared to turn a blind eye to obviously false social security numbers.

Some claim that U.S. born workers are less productive and not interested in some kinds of work, especially involving hard physical labor. Some claim that hiring undocumented workers is cheaper because they will take lower wages, no benefits and are unlikely to complain about lax safety standards. Some of the hiring is probably simply a matter of established custom in certain industries. Little of what is offered in the popular press really rises to the level of evidence.

The Phone Rings

But the fact remains that employers hire millions of workers in apparent disregard of U.S. immigration law.

Fantasy aside,  small and middle-sized employers who are concerned about the risk of losing employees to deportation or legal liability for hiring employees not authorized to work would do well to ensure that their hiring practices comply with IRCA. The inflamed political rhetoric around the issue of immigration seems unlikely to cool off in the near future, so that might be a very prudent move.

Using workers hired through labor agencies may minimize the risk of liability under federal law., although it may not produce a stable labor pool.

If highly skilled U.S. workers cannot be found for certain jobs, employers may turn to various visa programs that would permit individuals to work legally. Another option would be to offshore jobs to countries like Canada that have more liberal immigration policies.

Few see mass deportation as as a real threat, either to employers or undocumented workers. Nonetheless, employers must deal with a national immigration policy that seems to create obstacles for both those who want to work and those who want to hire.

 

Anne Wallace, Esq.

By

Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

Get Business Legal Updates

Please provide your full name.
Please provide a valid email address.
We respect your privacy, and we will never share your information. Unsubscribe at any time.

Related Publications

S Corp V. LLC? How you structure your business is one of the most important decisions you’ll have to make; but before you take that plunge, there are some questions you should ask yourself, like:  ❓Are you doing this all on your own? ❓What does your business do?❓What are your future plans?  The answer to these questions…

September 22, 2021

Regulatory compliance, to put it simply, is the process of a business conforming to international, federal, and state laws and requirements. These requirements can vary greatly depending on your industry or business structure, which is why it’s always a good idea to seek legal counsel to ensure you’re following the proper steps. This is something…

September 21, 2021

When it comes to e-commerce, Pasha Law PC has you covered. From what to know about setting up terms and conditions, to advice on what to do if your Amazon seller account is suspended. Want more e-commerce law content? Like and follow us, not just on Facebook, but Instagram and LinkedIn too.

September 17, 2021

Did you know you can do more than listen to the Legally Sound | Smart Business by Pasha Law PC podcast? You can also see clips of it on YouTube! Watch Matt and Nasir battle it out while discussing which is better for business, CA or TX. Leave us a comment to let us know…

September 16, 2021

Keeping up with Legally Sound|Smart Business by Pasha Law? If you haven’t listened in a while, hop over to our website and check out the latest episode. Don’t forget to comment and leave us a review! https://www.pashalaw.com/category/legally-sound-smart-business/

September 14, 2021

Are you considering forming an LLC for your business? Wondering if it’s the right move? Do you and your partners have critical questions before signing your LLC Operating Agreement? Click here to learn more about LLCs and operating agreements. https://www.pashalaw.com/llc-operating-agreements-issues-discuss-members/

September 13, 2021

Today marks the 20th anniversary of 9/11. Today we remember those we lost, and establish a new commitment to love, hope, and resilience.

September 11, 2021

Tailored services are becoming a big #LegalTrend, but we’re proud to say we were doing it first with Pasha Law Select. Since 2009, PLS has been offering our clients high-end general counsel at a fixed monthly rate. Get a legal team that is dedicated to you and your business. That is Pasha Law Select.

September 9, 2021

Wondering who wins in a California V. Texas battle for business? Find out in this clip from our latest episode of Legally Sound | Smart Business by Pasha Law, and be sure to visit our YouTube channel for more podcast clips like this one. https://www.youtube.com/user/PashaLawPC

September 8, 2021

People want to work with companies who understand them. The same holds true for law firms. Working with a law firm that specializes in your industry leads to a better client/attorney relationship, a deeper understanding of goals, and services tailored to you and your business. As we enter the second half of 2021, it might…

September 7, 2021

Find yourself wondering which state is better for business, Texas or California? Worried you’re making huge mistakes with your company? Ever thought about the right way to fire an employee? On our podcast, Legally Sound | Smart Business by Pasha Law PC, lead attorneys Nasir and Matt discuss topics like this, and so much more….

September 2, 2021

Are you ready to divide your business into separate entities? It’s a big question, but luckily you don’t have to answer it alone. In this article on our website, https://loom.ly/sEP8Zyw, we discuss when you know it’s time to separate your business, and what the benefits of separate entities might be.

September 1, 2021
Legally Sound Smart Business cover art

Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
Apple Podcast badge
Google Podcast badge
Spotify Podcast badge

Latest Episodes

July 14, 2021

Through a five-round championship bout, Matt travels to Texas from California to determine which state is better for business. Will it be a knockout with a clear winner or will it go to the scorecards?

June 16, 2021

Covered in this episode of Legally Sound Smart Business are some typical business mistakes blunders small businesses often make and how to avoid them. Blunder #1: Copying and pasting agreements It may sound like a good idea at the time, but this blunder comes with hidden pitfalls. Having an attorney draft terms that are specific…

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee? We would like to thank our guests for this episode: Amr…

December 2, 2020

The COVID-19 pandemic has turned nearly every aspect of life on its head, and that certainly holds true for the business world. In this episode, Matt and Nasir explain how the early days of the pandemic felt like the Wild West and how the shifting legal playing field left a lot open to interpretation and…

November 16, 2020

After plenty of ups and downs, our buyer has finally closed on the purchase of their business. While we’re marking this down in the ‘wins’ column, it never hurts to review the game tape. In this final episode, our hosts, Matt Staub and Nasir Pasha, return to the deal almost a year later to reflect…

September 15, 2020

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

July 31, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

June 12, 2020

With frustration at an all-time high and professionalism at an all-time low, our friend the Buyer has “had it” with the Seller and quite frankly their lack of knowledge. At present our Buyer is rightfully concerned that the latest misstep from our loose-lipped Seller will threaten not only the entire operation of the businesses but…

May 11, 2020

As we go deeper into the buying process, we start to uncover more challenges from our seller and encounter some of the wrenches they are tossing our way. When we last left off in episode three our team was knee deep in due diligence for our buyer, had already penned and signed the Letter of…

April 4, 2020

One word–interloper! When a new mysterious broker enters the transaction and starts to kick up dust, Nasir and Matt take the reins. The seller signed off on the letter of intent (see episode 2), yet this “business broker” serves only friction and challenges by refusing to send financials, whilst demanding more of a firm commitment…

April 4, 2020

Just as most stories and deals start out, everyone is optimistic, idealistic and full of hope for clear skies. It’s a perfect outlook with a perfect setup for the ups and downs yet to come. Peek further behind the curtain and into the first steps of buying a business: the letter of intent. After the…

April 4, 2020

When a savvy buyer hears opportunity knocking to purchase a prime positioned business, she decides not to go it alone and taps in the professionals to help navigate what could potentially be a fruitful acquisition. “Behind the Buy” is a truly rare and exclusive peak into the actual process, dangers, pitfalls and achievements, that can…

August 7, 2019

GrubHub is subject to two “matters of controversy” that have likely become common knowledge to business owners: “fake” orders and unfriendly microsites.

May 28, 2019

In this podcast episode, Matt and Nasir breakdown the legal issues of the subscription industry’s business on the internet. Resources A good 50-state survey for data breach notifications as of July 2018. California Auto-Renewal Law (July 2018) Privacy Policies Law by State Why Users of Ashley Madison May Not Sue for Data Breach [e210] Ultimate…

March 12, 2019

In recording this episode’s topic on the business buying process, Matt’s metaphor, in comparing the process to getting married probably went too far, but they do resemble one another. Listen to the episode for legal advice on buying a business.

December 3, 2018

Nasir and Matt return to discuss the different options available to companies looking to raise funds through general solicitation and crowdfunding. They discuss the rules associated with the various offerings under SEC regulations and state laws, as well as more informal arrangements. The two also discuss the intriguing story about a couple who raised over…

July 24, 2018

Flight Sim Labs, a software add-on creator for flight simulators, stepped into a PR disaster and possibly some substantial legal issues when it allegedly included a Trojan horse of sorts as malware to combat pirating of its $100 Airbus A320 software. The hidden test.exe file triggered anti-virus software for good reason as it was actually…

April 17, 2018

Attorneys Matt Staub and Nasir Pasha examine Mark Zuckerberg’s congressional hearings about the state of Facebook. The two also discuss Cambridge Analytica and the series of events that led to the congressional hearings, the former and current versions of Facebook’s Terms of Service, and how businesses should be handling data privacy. Full Podcast Transcript NASIR:…

March 10, 2018

The Trump presidency has led to a major increase in ICE immigration enforcement. It’s critical for business owners to both comply with and know their rights when it comes to an ICE audit or raid. Nasir, Matt, and Pasha Law attorney Karen McConville discuss how businesses can prepare for potential ICE action and how to…

February 5, 2018

New years always bring new laws. Effective January 1, 2018, California has made general contractors jointly liable for the unpaid wages, fringe benefits, and other benefit payments of a subcontractor. Nasir and Matt discuss who the new law applies to and how this affects all tiers in the general contractor-subcontractor relationship. Click here to learn…

January 2, 2018

With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how…

December 7, 2017

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media. This harassment watershed has not only been felt within…

November 16, 2017

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program…

October 10, 2017

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees. Requests for Client Information General Rule to Follow Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for…

August 24, 2017

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved…

June 28, 2017

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and…

June 7, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they…

April 3, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00),…

February 1, 2017

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies. Full Podcast Transcript NASIR: Hi and welcome to Legally Sound Smart Business! I’m Nasir Pasha. MATT: And I’m Matt Staub. Two attorneys…

January 5, 2017

The guys kick in the new year by first discussing Cinnabon’s portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone’s name or likeness for commercial gain.

December 22, 2016

Nasir and Matt discuss the recent incidentat a Victoria’s Secret store where the store manager kicked out all black women after one black woman was caught shoplifting. They then each present dueling steps businesses should take when employees are accused of harassment.

December 8, 2016

Nasir and Matt return to talk about the different types of clients that may have outstanding invoices and how businesses can convert unpaid bills to getting paid.

November 10, 2016

After a long break, Nasir and Matt are back to discuss a Milwaukee frozen custard stand that is now revising it’s English only policy for employees. The guys also discuss how similar policies could be grounds for discrimination and what employers can do to revise their policies.

October 6, 2016

The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.

September 29, 2016

Nasir and Matt discuss the racial discrimination claims surroundingAirbnb and how it’s handled the situation. They also discuss some practical tips for businesses experiencing similar issues.

September 8, 2016

Nasir and Matt discuss whyAmazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan.

August 25, 2016

Nasir and Matt talk about the accusations surroundingfashion giant Zararipping off the designs of independent artists like Tuesday Bassen and howsmaller companies can battle the industry giants.

August 18, 2016

Nasir and Matt discuss Brave Software’s ad replacing technology that has caught the eye of almost every national newspaper and has a potential copyright infringement claim looming. They also welcome digital marketing expert Matt Michaelree to speak on the specifics of what Brave is attempting to do and whether it has the answers moving forward.

July 28, 2016

Nasir and Matt discuss the sexual harassment lawsuit filed by Gretchen Carlson against Fox CEO Roger Ailes. They also talk aboutthe importance of sexual harassment training and properly handling such allegations in the office.

July 15, 2016

Nasir and Matt talk about the changes at Starbucks that have led to many disgruntled employees and customers.

June 23, 2016

Nasir and Matt discuss the criminal charges facing FedExinvolving the alleged transportation of illegal drugs. They also talk about how business owners should address working with customers that may be breaking the law.

June 15, 2016

The guys return after a long break to discuss why Yahoo is auctioning off over 3,000 patents and how this decision will affect the longevity of the company.

May 25, 2016

Nasir and Matt discuss the increase in the salary thresholdfor exempt employees and how employerscan try to avoid paying overtime as a result.

May 18, 2016

Nasir and Matt discuss the Baltimore law that makes it very difficult to operate food trucks in the city. They also discuss all the legal restrictions tohaving a food truck.

May 11, 2016

Matt listens to Nasir recap the developing battle in his hometown of Vandalia, Ohio over whether a Dunkin Donuts can move into a location in close proximity to a local favorite donut shop. They then discusswhether the issue is more legal or personal.

May 9, 2016

The guys kick off the week by discussing a Nevada employee who is claiming she was fired for not supporting the Scientology beliefs of her employer.

April 27, 2016

The guys discuss the massive floods in Houston,how employers responded, and why one meteorologist became a local hero. They also discuss the steps businesses should take in preparing for storms outside the workplace.

April 20, 2016

The guys discuss the boycott of Amazon over the products of an unnamed presidential candidate. They also talkabout how a business should handle a boycott and whether it’s possible to exit one unscathed.

April 13, 2016

Click here to read HubSpot’s response on this topic. Nasir and Matt discuss the trend in startups to compensate programmers and other early employees with stock options and how the company culture at HubSpot isn’t what it seems.

April 6, 2016

Nasir and Matt discuss various lawsuits against social media platforms in which users are accused of artificially inflating their social currency.

We represent businesses.
That’s all we do.

Oh, and we love it.

We love our work. We love reviewing that lease for your new location. We thrive on closing that acquisition that nearly fell through. We’re fulfilled when we structure a business to grow, raise capital, and be legally protected.

We focus on developing close relationships with our clients by being like business partners. A partner who provides essential, personalized, proactive legal support.

We do all of this without utilizing the traditional billable hour model. You pay for the value we bring, not the time spent on calls, emails, and meetings.

Our team is made up of attorneys and staff that share these values and we are retained by clients who want the same.

Pasha Law PC operates in the states of California, Illinois, New York, and Texas.

Meet Our Team

Fractional General Counsel Services

Pasha Law Select offers the expertise of a high-end general counsel legal team for every aspect of your business at a fixed monthly rate. Pasha Law Select is deliberately designed to allow our legal team to be proactive, to anticipate, and to be comprehensive in serving our clients. To be great lawyers, we need to know our clients. We can’t know our clients unless we represent a select number of clients in the long-term. This is Pasha Law Select.

Learn More