Easing the Legalese with Hispanic Workers By Brandi D. McNally

Wondering if you are within your legal bounds with overtime or what the government might do to you regarding the legal status of your Hispanic workers? Before despair starts burrowing into your mind and furrowing your brow, find out what actions an industry attorney advises on dealing with some of the most-common challenges facing greenhouse employers.

In surveying the ethnic origins of your greenhouseemployees, it probably comes as no surprise that one in eight people in theUnited States is of Hispanic origin, or 32.8 million, according to a 2000 U.S.Census Bureau report. Approximately 66.1 percent of this population comes fromMexico, where poverty levels are high and the promise of a better life liesjust across the border. Mexicans and other Hispanics are industrious,nose-to-the-grindstone people who complain very little, and are spurred on by adeep sense of optimism that working in the United States will improve their ownlives and those of their families. Your Hispanic employees are probably some ofthe best workers you’ve ever had — and some of them may be in this countryillegally.

You may have invested many years of training in one or moreof these individuals, earning their trust and loyalty, and allowing them torise into important production positions in which they’ve carved a niche thatyou would be hard-pressed to find a replacement for. Despite your best effortsto conduct your business according to the law, however, there will always befactors out of your control. For example, you may be one of 750,000 recipientsof a letter from the Social Security Administration (SSA) advising employers ofmismatched Social Security numbers (SSN), and some of your most valuedemployees could be on this list.

James Huse, Jr., inspector general of the SSA, gave atestimony before the House Judiciary Subcommittee on June 25, 2002, regardingSocial Security integrity and its importance in homeland security. He indicatedthat the undocumented population in the United States reached five million in1996 and increases by approximately 275,000 people every year; many of thesepeople have obtained SSNs fraudulently. The agricultural industry in particularappears to be under the microscope due to the disproportionately high number ofemployee mismatches within the industry. “SSA statistics show threeindustries (agriculture, food and beverage, and services) account for almostone-half of all wage items in SSA’s Earnings Suspense file (ESF) for whichemployee names and SSNs fail to match SSA’s records. Of these industries,agriculture is the largest contributor, representing about 17 percent of allESP items. In fact, in one study of 20 agriculture employers, we determinedthat six of every 10 wage reports submitted by these employers had incorrectnames or SSNs,” said Huse in his testimony.

According to Fred Atterbury, legal consultant to theAmerican Nursery & Landscape Association (ANLA) and others in the greenindustry on wage and hour, I-9 forms and related matters, there are four basicissues on his most-frequently-asked questions list by green industry memberswith Hispanic employees. Mismatched Social Security number issues top the list.The second most-common question has to do with employers discovering they havean illegal employee and wanting to know how to approach obtaining legal statusfor that employee. I-9 Form questions come in third, and fourth are wage andhour issues such as making deductions and overtime.

Social Security mismatches

The SSA’s form letter, which you may or may not havereceived, begins with an explanation as to why you have received the letter.”We are sending you this letter because some of the names and SocialSecurity numbers that you reported on the Wage and Tax Statements (Forms W-2)for tax year 2001 don’t agree with Social Security Administration records,”it reads. “We need corrected information from you so that we can properlycredit your employees’ earnings. We realize there could be a number of reasonswhy the reported information doesn’t agree with ours, such as: transcription ortypographical errors, incomplete or blank name or SSN, or name changes.”The letter proceeds to inform the recipients that they have 60 days to respondwith the information they are able to correct; materials are attached toinstruct the recipient on how to correct SSNs.

Despite the fact that directions are clearly spelled out andthere is even a phone number to call for questions, employers start worryingabout what they should do, at which point they call law firms like Atterbury’s.”It’s the first time they get ‘official’ notification from anygovernmental agency that they may have a potential immigration problem,”says Atterbury. “As soon as they get that letter, they start worryingabout the potential ramifications.” All of the information you need,however, is contained within this letter; an attorney can only direct theletter recipient back to the instructions delineated in the letter. The reasongreenhouse managers and owners are calling, according to Atterbury, is thatthey want to protect themselves. “Many of them have heard these horrorstories about the immigration service backing up buses and loading all of theirworkers on it and hauling them away, and they Á don’t want that tohappen to them.” Employers are also concerned because they may havereceived the Social Security letter for a long-time employee. “It is notunheard of that an employee noted in the letter may have been an employee forfive or six years. They’ve got a reputation and some work experience with thatindividual, they might even be a key person — an assistant foreman orsomething, and that would be difficult to replace in today’s workforce.”

Following the instructions in the letter is the easy part;what’s muddier is what you should do in the long-term. There are a number ofpossibilities that will vary based on you, the employer, and what you view asthe best way to proceed. Depending on what you find out about the mismatch,you’ll have to ask yourself if firing the employee is the best option, askingthe employee to visit the Social Security office themselves, or perhaps noteven apprising the employee of a potential problem and taking action on yourown. You don’t have to assume the worst has occurred right away, however;remember that the error could be a clerical mistake on your part or the government’sinvolving transposed numbers or misspelled names.

Before making any drastic decisions, comb through theletter’s instructions. If your records do not match the W-2 Form, you shouldcorrect the Form and report that correction to the SSA. In this case, theemployee doesn’t even have to be involved. If your records and the W-2 Form domatch, however, you should “ask your employee to check his/her SocialSecurity card and to inform you of any name or SSN difference between yourrecords and his/her card. If your employment records are incorrect, correctyour records.” If your records and the employee’s records match, however,the employee needs to resolve the issue with SSA and inform you of any changes,and you should then correct your own records. ANLA’s Government Relations Teamadvises that employers give employees a reasonable amount of time to resolvethe mismatch issue with SSA and report back to the employer if there arechanges that need to be made. The mismatch letter, the SSA writes, “is nota basis ‘in and of itself’ for you to take any adverse action against theemployee, such as laying off, suspending, firing or discriminating against anindividual who appears on the list.” Employers who use the information inthe letter to justify taking adverse action against an employee may violatestate or federal law and be subject to legal consequences.

Seeking legal status

Not all employers would seek to terminate an employee theybelieved to have questionable immigration status, anyway; for some, discoveringor knowing that an employee is illegal, especially if that employee is a greatasset to the company, is reason to find out how they can make the employeeright with the law. Says Atterbury, “An employer calls and says, ‘I havereason to believe that some of my workers are not legal. What can I do to getthem legal?'” This issue may have arisen because employees in questionhave come forward and admitted that they are not legal, or because anotherworker has come forward and indicated that the employer should take a look at Xemployee’s documents because he/she may be illegal. If the employer finds outan employee is illegal, they will either terminate them or call an attorney tofind out how they can make the employee legal.

Unfortunately, there is no one way to answer this question– it must be dealt with on a case-by-case basis. Atterbury usually advisesemployers to go to a local attorney who handles immigration issues, and morespecifically, one who deals with immigration issues in the green industry. Youcan find one through a referral from a corporate attorney, or contact theAmerican Bar Association (www.abanet.org) for references. “Either theemployer themselves and/or the employer and employee have to go and discuss itwith the immigration attorney and determine what their individual legal statusis, and what they can do to amend their status, if it is illegal, to make itlegal,” Atterbury says.

An alternative, not-so-safe approach is for both employerand employee to go to the Immigration and Naturalization Service (INS) inperson and ask what procedures would need to be followed to legalize theemployee. You could be voluntarily placing your employee in the arms of danger,however, judging from the recent uproar over what happened to a number ofMiddle Eastern immigrants when they were forced to register with the INS. Forthose unfamiliar with the story, all male visitors aged 16 and older from fivecountries, including Iran, Iraq, Libya, Sudan and Syria, were ordered toregister with the INS by December 16, and in the process, some were arrestedfor not having their papers in order. In some cases, this lack of properdocumentation was caused by government backlog. Lawsuits have been filedcontending the INS is violating Congress’ intent by detaining so manyimmigrants when the order was simply to register them.

With an attorney, you can be assured confidentiality and apossible path, however long, to legality; with the INS, no one knows what mayhappen.

I-9 Forms

One tool every employer has in place to both avoid penaltiesand hiring potentially illegal employees is the I-9 Form. I-9 Forms arerequired by every employer in the United States for every employee hired sinceNovember 1986. The Á Form performs two functions: First, it identifiesthe workers and verifies their ability to work in this country, and second, ifa government agent visits your facility, it provides documentation for them toverify the correctness of their own files and see if there are any potentialviolations of the law. There are fines and penalties associated with fillingthese forms out incorrectly or not filling them out at all, accepting illegaldocuments, or filling them out but providing incorrect documentation. SocialSecurity cards are often one of the documents presented by a worker whenfilling out an I-9 Form, which brings us full-circle to the issue of SocialSecurity mismatches once again.

So what happens if you accept documents that, unbeknownst toyou, turn out to be fraudulent? “As long as the employer examined thedocuments and they appeared to be valid using a reasonable-person test — aslong as they look valid on the face of them — that’s as far as the employerneeds to go. There is no penalty to the employer in those circumstances,assuming they followed a good-faith effort in examining them,” Atterburysays.

And what if you know an employee is illegal and try to skirtthe law by not filling out an I-9 and paying “under the table?” Firstof all, Atterbury does not believe that hiring illegal workers is as bad aproblem as it used to be. “Business has become more sophisticated and thegovernment has become more sophisticated, in terms of the tracking of workersand payment of wages.” If you should get caught, however, you could facelarge fines and penalties from the INS, the Internal Revenue Service, the SSAand any other agency that has anything to do with employment issues.

Wage and Hour Issues

The fourth issue concerning greenhouse employers has not todo directly with immigration, but with wage and hour laws. Making deductionsthat would reduce the employee’s wage below minimum is a frequent problem aboutwhich employers seek guidance. For example, the federal minimum wage iscurrently $5.15 per hour. If an employer hires someone at $6.00 per hour butrequires the employee to purchase a uniform for the job, the employer would beviolating the Wage and Hour Law if buying that uniform reduced the employee’spay below $5.15 in any given workweek.

Overtime issues are another area of concern, according toAtterbury, since it is widely assumed that employees working in the greenindustry are exempt from overtime because they are working in agriculture. Thatis not necessarily so. “The government’s definition of agriculture isn’tquite that broad, it’s a bit more restrictive, and there are a number ofemployers that don’t qualify for the agriculture exemption under the Fair LaborStandards Act. Overtime would be required if the employer does not qualify forthe agriculture exemption; the standard is that overtime is required. You startwith the basic premise that overtime is required to determine if employees areexempt or not.”

Employers will frequently call wanting to know if they mightbe violating the Wage and Hour Law by not paying overtime. Labor laws can becomplicated, and it is difficult to determine a simple yes or no answer forparticular questions without scrutinizing the case at hand. Atterbury advisesthat an employer with questions that fall under the Wage and Hour Law contactan attorney specializing in two things: first, the Fair Labor Standards Act,and second, its application in the green industry. “Even an attorneythat’s familiar with the Fair Labor Standards Act may not do much work in thegreen industry, and it’s a bit different than, say, working in a factory or cardealership or something.”

ANLA offers a publication to its members that summarizes theFair Labor Standards Act and its application in the green industry, written byAtterbury. For more information, call (202) 789-2900. If you have beencontacted by the SSA, read the documents, follow their instructions and relax.If you want to make sure you aren’t violating any laws under the Fair LaborStandards Act, call an attorney with experience in the green industry. Wisdomfor how to proceed can only come when all facts lie before you — not in thequagmire of the unknown.



Brandi D. McNally

Brandi D. McNally is associate editor of GPN.



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