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Proposed Law to Make Employer Verification of an Employee’s Work Status Mandatory
Businesses operating and hiring employees in the U.S. are required to ensure that they are hiring employees who can work legally in the country. In order to help businesses ensure that the employees they hire are legally allowed to work in the country, the government encourages employers to use the E-verify program. The verification of an employee’s employment status through the government’s E-verify program has been voluntary to employers, except for certain employers who work on federal contracts, and employers in states that have laws requiring the use of E-verify.
Under a proposed law, the Legal Workforce Act, employers could be required to use a system modelled after the E-Verify program. The law would require the use of this program to be mandatory for all employers, and would be implemented in stages across the country. The law would preempt state law on this issue, and states would be required to comply with the law, or if they choose, they could enact stricter laws on employment verification.
The bill would require that employees who are not currently verified under the E-verify program to be reverified, which will require the employee to verify that he can work legally in the U.S., and for employers to certify that they verified an employee’s status.
If the bill is passed and signed into law, employers who use the system to verify their employees’ status will have a defense to allegations of improperly hiring employees who cannot work legally in the country. Therefore, if the system made an error and verified an employee who was not actually legally allowed to work in the country, the employer would not be liable for federal fines.
Employers with 10,000 or more employees would be required to use the new system within six months of the Legal Workforce Act becoming law, employers with 500 to 9,999 employees would have 12 months, employers with 20 to 499 employees would have 18 months, and employers with one to 19 employees would be required to comply with the law within 24 months. There will be different compliance dates for employers hiring agricultural workers.
There are also provisions in the law that seek to stop people from using other people’s social security numbers when applying for positions. These provisions are supposed to limit identity theft.
There have been proposals to make E-verify mandatory in the past, for example, the 2013 Accountability Through Electronic Verification Act proposed to make E-verify mandatory, but it did not make it to law. This time, there is a greater push for these changes, and the bill may have a better chance of becoming law.
Contact Us for Legal Assistance
If you are an immigrant or foreign worker who needs to determine if you are working legally in the U.S., or who needs to adjust your status in order to work legally in the U.S., you need to speak to an experienced immigration attorney about your status. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California for a consultation.
U.S. Guest Worker Programs
The United States has various visa programs aimed at letting foreign nationals work in the United States for a period of time. The two main guest worker programs for low skilled jobs are the H-2A program and the H-2B program. The H-2A program is for workers who take up temporary agricultural work, and H-2B program is for workers who will take up temporary nonagricultural work.
Employers usually recruit guest workers, some of whom may already be in the United States, for temporary work usually meant to be for less than a year. In order to obtain visas under these guest worker programs and allow foreign workers to legally work in the United States, the employer has to show that the need for the worker is temporary. The employer also has to show that there are not enough U.S workers who are able, willing, qualified, and available meet the need. The guest worker visas issued under H-2A and H-2B do not lead to legal permanent residence.
Because of the way the programs are set up, there have been reports of major abuses of immigrant workers by the employers and contractors who supply the workers to employers. These abuses generally relate to workplace abuses, such as time and pay issues, and even sexual harassment. In some cases, workers are also cheated out of large sums of money by contractors and recruiters who assure them that the guest worker programs lead to green cards or lawful permanent residence.
Unfortunately, most temporary guest workers do not know that they have rights even as temporary workers in the United States. Having these rights means that when employers do not pay the applicable minimum wage, cheat their workers out of hours worked, or engage in other employment abuses, the workers can sue or file complaints to enforce their rights.
For most workers who do know or are at least aware of their employment rights, there is a fear that they will not continue to get work after they complain or file a lawsuit. An employee generally cannot be fired for filing a lawsuit to enforce employment rights. However, employers under the guest worker program can terminate an employee at any time, which leads to the employee losing his visa and ability to stay in the country illegally. Employees who are fired in this way can still file lawsuits to enforce their rights against abusive employers.
If you are an immigrant looking to work in the United States under a guest worker program or any other employment visa category, you should do as much research as possible before signing on with a contractor or employee. Ask around in your community for any information about a prospective employer before you take on the job. While having an opportunity to work legally in the United States may seem an attractive offer, if you are working for the wrong person, it can quickly turn into a nightmare.
Contact us for Legal Assistance
If you need assistance with a visa application or immigration status change, an experienced immigration attorney may be able to assist you. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California and schedule a consultation.
Can Undocumented Workers Receive Workers’ Compensation?
Undocumented workers are just as likely to be injured on the job as other workers who are legally allowed to work in the United States. However, when they are injured, undocumented workers may be hesitant to apply for the workers’ compensation benefits they are entitled to because they are afraid that will lead to them losing their jobs or being deported. Some workers also argue that undocumented workers should not receive benefits because they are not really employees, as they are not legally permitted to work.
States have their own laws governing workers’ compensation, and can include undocumented employees into the definition of qualifying employees under the law. California’s workers’ compensation law does this, and therefore, undocumented workers who are qualifying employees are eligible for workers’ compensation benefits.
If the undocumented worker is an independent contractor, he or she cannot receive these benefits because they are only available to workers who qualify as employees. In some cases, the employer may improperly label an employee as an independent contractor. In those cases, a court can determine if the employee is properly classified.
If an undocumented worker does not qualify as an employee for workers’ compensation purposes, he or she may still file a personal injury lawsuit against the employer and anyone else who is liable for injuries sustained in a workplace accident. As with workers’ compensation benefits, a person’s immigration status is not a factor in who is allowed to file a personal injury lawsuit in California, and undocumented immigrants can legally file lawsuits.
While the law allows undocumented workers to collect workers’ compensation benefits, it may be difficult to do so in reality. Some employers may threaten to report workers who claim these benefits to immigration officials. This can force workers to forgo important rights in order to avoid deportation. Unfortunately, undocumented workers may be deported even if they have a valid claim against their employer, and the employer’s action in trying to blackmail the worker would not be applicable as a defense to deportation.
However, workers should remember that the employer also faces fines under the federal law for hiring undocumented workers. The employer’s threat may be just that, a threat, because the employer may not want to bring attention to his or her employment practices. Undocumented workers who believe they have a workers’ compensation case should seek advice from a workers’ compensation attorney.
Undocumented workers have additional workplace rights regardless of their immigration status. If an undocumented worker feels unsafe due to workplace conditions, he can file a complaint with the California Department of Industrial Relations.
Contact Us for Employment Related Immigration Issues
All workers should be protected and offered a safety net in case they get injured on the job. Being an undocumented worker in California does not mean that you do not have workplace rights. If you have any immigration issues related to working in the United States illegally, we may be able to provide legal assistance. Contact our multi-lingual staff to speak to experienced immigration attorney Nathan Wei from Strassburg, Gilmore & Wei, LLP, in Pasadena, California and schedule a consultation.
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