The U.S. Labor Department reports a national unemployment rate of 3.6% for the latest available statistics (May 2019). This is the lowest American unemployment rate since late 1969. Although there appears not to be a reliable source for information regarding the skillsets of this 3.6%, I have been hearing anecdotal evidence of employers having great difficulty filling manufacturing positions at their plants.
For example, the president and CEO of a local metalworking facility indicated that he sometimes must look to a pool of persons recently released from incarceration to maintain staffing levels. Certainly, this is an indication of desperation among similar employers to locate and retain employees. Consequently, some American employers also dip their toe into the pool of potential employees consisting of unauthorized aliens, and employers need to be aware of the regulations and potential penalties of hiring unauthorized aliens.
Perhaps the most important regulation is § U.S. Code Section 1324a—Unlawful Employment of Aliens. The statute indicates that “[i]t is unlawful for a person or other entity to hire, recruit, or refer for a fee for employment in the United States, an alien knowing the alien is an unauthorized alien.” The statute also says it is unlawful to continue to employ the alien in the U.S. knowing the alien is (or has become) unauthorized with respect to their employment.
It is also illegal to use a contract, subcontract or exchange that has been entered into, renegotiated or extended after Nov. 6, 1986, to obtain the labor of an alien in the U. S. knowing that the alien is unauthorized. This may seem obvious, but this places the onus onto the employer to be aware of the employee’s employment status even if the employee has an individual labor contract.
The statute also says that if an employee is a member of a collective-bargaining agreement used by two or more businesses, and a first business complies with the requirements to verify the alien’s status, then a subsequent employer is deemed to have complied with the statute upon hiring the same employee.
However, the statute provides some safe harbor for employers that take adequate steps to verify the prospective employee is not unauthorized. It stands to reason that most employers already verify relevant ID documents for all hires, but it may be beneficial to verify that your human-resources staff verifies the alien status of each new hire.
Your company may be subject to civil and criminal penalties for hiring unauthorized aliens. Civil penalties range from $375 per unauthorized worker for a first offense up to a maximum of $1,600 per worker for a subsequent or third offense. If the employer engages in a “pattern and practice” of hiring undocumented workers, then penalties can include fines of up to $3,000 per unauthorized employee and/or employer imprisonment for up to six months. This does not include “harboring” illegal immigrants or employing 10 or more illegal immigrants in one year. Harboring an illegal immigrant can lead to 10 years of prison time.
Additionally, employers should be aware of the Racketeer Influenced and Corrupt Organizations (RICO) Act. Employers can be sued under the act for hiring illegal immigrants and can face large settlement deals.
Be mindful that if you or your staff learn of information, subsequent to hire, that suggests a worker may not be authorized to work in the U.S., someone should research the facts a bit more. Employers can be held liable not only for actual knowledge of an employee’s unauthorized alien status but also for “constructive knowledge” – that is, basically, for having reason to know. Furthermore, it may be beneficial to establish and review your standard hiring practices to eliminate or reduce potential problems created by hiring unauthorized aliens.