SEPTEMBER/OCTOBER 2007
Immigrant workers can be well-suited for scrapyard jobs, but managers struggle to ensure they hire only those who are eligible to work.
BY MARC HEQUET
Immigrants largely founded the modern U.S. scrap industry, according to industry lore. Many of today’s scrap processors can trace their family and company histories to the great waves of European immigration to the United States between 1840 and 1940, when their parents, grandparents, and great-grandparents arrived in this country with next to nothing and peddled scrap on their backs, with hand carts, or with horse-drawn wagons.
Because many scrap jobs are suitable for those who have limited education or speak little English, the industry still attracts immigrant workers. And Manny Bodner, for one, is happy to have them. They work hard and blend in, says Bodner, president of Bodner Metal & Iron Corp. (Houston), himself the son of Polish and Czech immigrants. He claims he doesn’t even know how many of his 25 employees are foreign-born. “If people say they come from another country, I welcome them,” he says. “Of course, you come in the proper way. You go through the procedures.”
Those procedures are what most concern scrap processors today. As employers, they are part of an immigrant-worker screening process that has become a political hot-button issue, in part because of heightened concerns about illegal immigration after the Sept. 11, 2001, terrorist attacks. The web is tightening around the estimated 12 million workers in the United States who are working illegally—and the pressure is mounting on employers as well.
Don’t bet on Washington to make things easier, though. Employers “are looking at immigration reform and hoping it’s going to resolve their problem,” says attorney Victor Cardwell, a principal with Woods Rogers PLC (Roanoke, Va.), but that’s not likely. Instead, tougher worker-screening requirements and more online tracking of workers’ eligibility for employment will mean that people doing the hiring “can no longer hide behind the notion that they didn’t know” that someone was in the country illegally, he says.
In fact, controversial new rules the U.S. Department of Homeland Security released in August give employers only a few months to resolve discrepancies in employment records before they must either terminate the employee or face potential prosecution. Loan Huynh, an immigration attorney with Fredriksen & Byron in Minneapolis, fears the tighter rules might result in panicked employers taking “actions that could violate antidiscrimination laws.”
Lawyers who counsel employers sense greater pressure on businesses of all sizes. In the past,
U.S. immigration officials sometimes raided high-profile companies they selected to make headlines “and hope that that would scare everybody else into compliance,” says employment lawyer David Whitlock, a partner with Fisher & Phillips (Atlanta). “Enforcement by propaganda,” he calls it.
Now, however, Whitlock thinks smaller employers are at risk as well. And employers could face criminal penalties if they knowingly employ illegal aliens—up to 10 years in prison and a $250,000 fine for harboring, concealing, or transporting illegal aliens for financial gain.
Scrap processors are challenged to provide willing, able immigrant workers with employment opportunities without running afoul of increasingly complex immigration laws.
ALL EYES ON THE I-9
Fundamentally, scrapyard managers want to know how they can ensure that they hire only those who legally can work. It all comes down to the Social Security number. “We absolutely have to have a Social Security number,” says Vincent Costanza of All Scrap Metals (Kenner, La.), where one of the company’s 17 workers is an immigrant. “If you don’t have a Social Security number, you don’t work for me.”
The basic tool for collecting workers’ Social Security numbers and other information is the Department of Homeland Security’s Form I-9. The federal government requires that companies complete and keep one I-9 on file for each current employee and retain the I-9 for each former employee for three years after the hire date or one year after the termination date, whichever is later.
The employee and the employer each complete part of the I-9. On the form, workers identify themselves and affirm that they are legal to work in this country. They also must provide the employer with one or more of 29 possible types of documents to prove their identity and their employment eligibility. Some documents, such as a U.S. passport or permanent resident card (“green card”), are sufficient to prove both identity and legal work status. Other documents prove one or the other and the worker must provide them in tandem, like a driver’s license for identity and a Social Security card for employability.
Employers must accept any of the documents or combinations of documents listed on the I-9 form. Though one scrapyard manager says he feels better hiring a person who also can provide a few years’ tax returns as proof of work history, Cardwell says that’s a bad idea—any deviation from the I-9 could result in a discrimination charge. “You don’t want to assume that because I look like I came from another country, I’m not eligible to work,” Cardwell says. “It’s a fine line that employers have to walk.”
But, employers note, sometimes illegal immigrants present false or stolen documents. What do they do then? The government doesn’t expect the employer to be Sherlock Holmes. A company is responsible only for making a reasonable examination of the documents. If they look genuine and relate to the employee, go ahead and accept them—in fact, you have to accept them, and that’s one of the system’s weaknesses. “It’s sometimes impossible for employers to know whether someone is using a fake green card,” Huynh says. “We know there are individuals selling fraudulent documents, whether green cards or Social Security cards. But employers can’t be expected to be forensic experts.”
The government does expect employers to fill out the I-9 form properly, though. Go back and audit your I-9s to be sure they’re complete and up to date. Common mistakes include forgetting a signature—or forgetting to write in the date of employment, because that information might not have been available when the form was completed. Such mistakes are not hard to fix if you still employ the person. If the person has left your company, finding the information might be harder or even impossible. Nevertheless, be vigilant about your I-9s. The government could fine you up to $1,100 per botched form.
ONLINE VERIFICATION
Employers can take another step voluntarily that might one day become mandatory—the online verification of workers’ Social Security numbers.
The free, Web-based Employment Eligibility Verification Program (www.ssa.gov/employer/ ssnv.htm) “helps employers figure out whether individuals they have hired or are about to hire are actually legally in the United States,” says Marilu Cabrera, a spokesperson for U.S. Citizenship and Immigration Services in Chicago, which is part of Homeland Security.
More than 17,000 companies use the pilot program, a joint initiative of CIS and the Social Security Administration. The system compares information the employer enters (up to 10 Social Security numbers at once) against records of 425 million people in SSA files and 60 million people in the DHS database. “Usually you get a response within seconds,” Cabrera says. Another option lets employers submit large quantities of Social Security numbers—up to 250,000—for overnight verification.
If your prospective worker has no record in the system, “that’s someone, as a responsible employer, you should not hire,” Cabrera says.
Online verification is far from foolproof, though. “One of biggest challenges that we’ve had is that the system doesn’t safeguard against identity theft,” Cabrera says. If your prospect is using a stolen identity, the system won’t raise a red flag. (About 40 companies are experimenting with software that checks photo IDs for authenticity, which might create an additional level of security.) Also, government databases do contain errors, Huynh notes.
Whatever the shortcomings of online verification, some employment lawyers advise their clients to get clicking. “By using that system, you will weed out those who don’t have a valid [Social Security] number—who by and large are illegals,” Whitlock says.
THE MATCH GAME
For companies that don’t use online verification, a new worker shows up with the proper documents, fills out the I-9, and goes to work. All’s well until the employer receives a “no-match” letter from the SSA, officially known as an Employer Correction Request, or a similar notice from Homeland Security. SSA sends no-match letters to employers when they have submitted more than 10 wage and tax statements (W-2s) that bear names and Social Security numbers that don’t match SSA records and when the number of mismatches is at least 0.5 percent of the total number of W-2s the employer submitted.
The receipt of such a letter doesn’t mean that the employer or employee intentionally provided a wrong number. So don’t panic, and don’t immediately fire anybody—that might be illegal. But do take the letter seriously. Once you receive a no-match letter, the U.S. Immigration and Customs Enforcement agency expects action. “You are on notice,” Whitlock says. The receipt of that letter starts a clock that gives the company about 90 days in which to take action.
Employers have 30 days to take reasonable steps to resolve the discrepancy, such as correcting clerical errors (e.g., a misspelled name or mistyped Social Security number) and reporting the corrections to Homeland Security or SSA.
Or employers can ask the employees who are the subject of the no-match letters to correct the documentation they provided and work with DHS or the SSA local office to resolve the problem within another 60 days. Workers who are eligible for employment and want to keep working for you will buckle down and get the form right.
If the discrepancy can’t be resolved, or if the employee can’t provide acceptable alternative documentation, within about 90 days of the receipt of the no-match letter, the employer must either terminate the worker or face the possibility of prosecution for knowingly employing an illegal immigrant. Lawyers say that under such circumstances, actual illegal workers typically vanish without waiting to get fired.
FILLING A GAP
If immigration reform or heightened enforcement succeed in reducing the immigrant worker population, employers will be scrambling to find replacements. Some scrapyards are scrambling already. When All Scrap’s Costanza makes a pickup at a local retailer, he says he’s sometimes tempted to offer jobs to people waiting in the employment line. But he stops short, he says, because of his “concern about people having their paperwork in order.”
Near the Canadian border, Skagit River Steel & Recycling (Burlington, Wash.) likewise feels the worker pinch. We take “whoever we can get from the labor pool,” says Lois Young, recycling services supervisor. “We don’t have a lot of people that apply or have the knowledge.”
A few years ago the company discovered a worker using a fake green card; now it uses a temporary-worker agency to screen its workers. The agency handles worker documentation and drug testing and pays benefits. If the temp employees don’t work out, Skagit just sends them back to the agency, no questions asked.
Employees from the agency cost $5 an hour more than the company’s usual starting wage, but Young thinks the scrapyard comes out ahead by avoiding the legal obstacle course of hiring or firing on its own.
Even though immigrant workers can pose additional challenges, scrapyards need good workers, and immigrants, managers say, are good workers.
“Don’t take them for granted,” says Johnnie Rodriguez Jr., a third-generation owner and general manager of Comal Iron & Metals (New Braunfels, Texas). “They’re some of the most hard-working people that we’ve hired. They do their job, no questions asked.”
On-The-Job Issues
Scrapyards with immigrant workers—particularly those new to this country or with limited English proficiency—face some special concerns in ensuring a safe and harmonious workplace.
One source of tension can be the use of languages other than English in the work environment. This might bother other workers who don’t speak the second language, and it can raise questions as to whether employees adequately understand and communicate safety instructions. (In general, companies can’t forbid the use of other languages in the workplace unless the language gap endangers employees.)
About 30,000 OSHA regulations apply to workplaces, and every one requires some kind of employee training, notes attorney Mark Lies, a partner with Seyfarth Shaw (Chicago). OSHA inspectors don’t check whether you have training available in the language your workers speak, he says, but they do look at whether workers have taken the training and learned the proper procedures.
So some employers go the extra kilometer. All Scrap Metals in Kenner, La., now holds two regular safety meetings: one in English and one for the company’s lone Spanish speaker. Moreover, the business orders safety videotapes and DVDs in both English and Spanish.
Using a variety of training media is a good idea, Lies says, because some workers might speak Spanish (or another language) but not read it. Their education might have stopped when they were reading at a first-grade level. Another option for training such workers is to find a fluent speaker of the other language and have that person provide the safety training.
Outside the workplace, recent immigrant employees might face obstacles that could affect their work attendance or performance. Some employers try to help—by providing English classes or finding them a lawyer, for example.
“We kind of have an open-door policy” for workers, says Johnnie Rodriguez Jr., owner of Comal Iron & Metals, a small, family-run scrapyard in New Braunfels, Texas. “If they have any kind of problem or have any question, we’re here to help. If they got a letter from the IRS and don’t understand it, we’ll come in and talk to them.” Indeed, Rodriguez says, sometimes workers “just want to talk to us because they’re homesick.”
Marc Hequet is a writer based in St. Paul, Minn.
Immigrant workers can be well-suited for scrapyard jobs, but managers struggle to ensure they hire only those who are eligible to work.