At the time of writing this column, the latest available statistics of the U.S. Labor Department indicate a national unemployment rate of 3.6% for May, 2019. This is the lowest American unemployment rate since late 1969.  While there does not appear to be a reliable source for information regarding the skill sets of that 3.6% of the population, or training experience, the author has been hearing for some time anecdotal evidence of employers having great difficulty filling positions at their respective manufacturing locations. Perhaps the same is true for your foundry or foundry supplier.  

In such a difficult staffing situation, some American employers dip their toe into the pool of potential employees consisting of unauthorized aliens, and employers need to be aware of some important regulations and potential penalties of hiring unauthorized aliens.

While there are many federal regulations regarding employment, perhaps the most important regulation to this discussion is 8 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 U.S., an alien knowing the alien is an unauthorized alien.” The statute goes on to indicate that it is unlawful to continue to employ the alien in the U.S. knowing the alien is (or has become) an unauthorized alien with respect to their employment. For the purposes of this statute, the term unauthorized alien is defined as an alien that is not at that time either (a) an alien lawfully admitted for permanent residence, or (b) authorized to be so employed by this chapter [of the law] or by the Attorney General [of the U.S.].

It is also illegal to use a contract, subcontract, or exchange that has been entered into, renegotiated, or extended after November 6, 1986, to obtain the labor of an alien in the U.S. knowing the alien is an unauthorized alien. This may seem obvious, but this section also requires the employer to be aware of the employee’s employment status even if the employee has an individual labor contract. The statute includes a section regarding collective bargaining units to specify 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 who take adequate steps to verify the prospective employee is not an unauthorized alien through the employment verification system. Here, if the employer attests that it has verified the employee is not an unauthorized alien by examining one of: (a) a U.S. passport or a resident alien card OR (b) two of a Social Security card and a driver’s license or other valid state identification document, the employer is deemed to have taken appropriate steps and is not likely to be subject to prosecution. It stands to reason that most employers already verify these documents for all hires, but it may be beneficial to verify that your human resources staff verifies the alien status of each new hire.

The statute also requires employers to save the verification documentation (work authorization Form I-9) for three years after hiring or one year after termination, whichever is later. The statute also indicates that employers have met the standard of verification if a good faith attempt was made to comply with these requirements—notwithstanding a technical or procedural failure.  Furthermore, the employer is deemed to have met the requirements of the statute if the employee was referred to the employer by a state employment agency.

The statute also requires the President to provide for monitoring and evaluation of the degree to which the employment verification system provides a secure system to determine employment eligibility in the U.S. The President must provide notice to Congress prior to implementing any changes to the verification system.

Your foundry may be subject to civil and criminal penalties for hiring unauthorized aliens. 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 subsequent or third offense. If the employer is found to have engaged 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 Corrupt Organizations (RICO) Act. Employers can be sued under the act for hiring unauthorized aliens, and can face large settlement deals; however, enforcement of RICO would require several severe missteps by the employer.

These basic legal points are provided for reference, and consultation with an employment attorney is advisable if you have further questions.  Please bear in mind that if you or your foundry 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. This is because 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 that the employee is an unauthorized alien. Furthermore, it may be beneficial to establish and review standard hiring practices at your foundry or foundry supplier to eliminate or reduce potential problems related to hiring unauthorized aliens.

Click here to see this story as it appears in the August 2019 issue of Modern Casting.