In a previous article I wrote about the legal concept of “respondent superior” you are responsible for the actions that your employees perform as part of the normal course of business.
Recently in West Allis a mother and her daughter were hit while crossing the street by a company truck driven by an undocumented alien. The child died from her injuries. The driver stopped and when the police arrived, they discovered that the driver had a previous record for drunken driving, failure to obey a traffic sign and property damage accidents. He had been deported to Mexico earlier this year.
This situation raises a number of questions. Why was he driving with a suspended license? How did he get a job for an Oak Creek firm when he was an undocumented alien? How did he get back into the country?
The first two questions have to be directed to the company that hired him to drive their truck. The last question can only be asked of the undocumented alien himself. Let’s address the first two questions from a human resource perspective.
Why was he driving with a suspended license?
The employer has the responsibility to verify that the employee being hired has a valid license and that he has a driving record clear of moving violations and accidents. It appears that the firm that employed this driver did not perform the necessary DOT check to verify his driving status. This check is available to any employer by going to the state DOT website and entering the individual’s name and social security number.
As stated on the DOT website, www.DOT.Wisconsin.gov, “As a result of terrorism threats and the dramatic increase in identity theft, new federal security measures have been made to improve the security and integrity of documents issued by states. These security measures are to help with fraud prevention and identification security efforts aimed at avoiding identity theft by preventing the issuance of a driver’s license or identification (ID) card to a person who may be using stolen or otherwise false identity documents. The new security measures allow the Wisconsin Department of Transportation (WisDOT) to participate in Social Security Online Verification (SSOLV), which means WisDOT will verify with the Social Security Administration (SSA) that the social security number (SSN) presented to WisDOT is, in fact, the number issued to the person with that name and date of birth. There is no additional cost to you for the verification process. In July 2005, the Department of Motor Vehicles (DMV) began verification of SSNs through SSOLV for driver license or ID card customers. WisDOT has compared the names and SSNs of all existing driver’s licenses and ID card holders with SSA’s records. During the process, some records were identified in which the name, date of birth and/or gender did not match. Those discrepancies must be resolved before a new driver license or ID card can be issued.”
When I was employed at JH collectibles, we had an applicant for a truck driver position state on his application that he had a clean driving record. When we received the report back from the DOT, it was discovered that the applicant had a number of moving violations and a drunken driving conviction. This is why you need to perform your due diligence as part of the hiring process.
You are permitted to offer the applicant the job pending the response from the DOT. When the response from the DOT indicates that the person was not truthful on their application, you can retract your offer. Be sure your application has a statement that permits you to terminate an employee who is not truthful on their application.
How did he get a job for an Oak Creek firm when he was an undocumented alien?
During the hiring process it is customary to require two types of documentation while completing the I-9 Employee Eligibility Forms, including an individual’s social security number. If the number is invalid you will receive a no match letter from the SSA saying the number is invalid. This letter may not be issued by the SSA for months or even longer. It is not unusual for undocumented aliens to share a social security number or use the number of a person who has died. It is well known that falsified documents such as green cards and social security cards are available on the streets of Milwaukee and other cities.
Strategies to prevent the hiring of an undocumented alien
The following information was found on the U.S. Immigration and Customs Enforcement (ICE) web site www.ICE.gov. The ICE Mutual Agreement between Government and Employers (IMAGE) program was initiated in 2007. The goal of this program was to assist employers in targeted sectors to develop a more secure and stable workforce and to enhance fraudulent document awareness through education and training.
By voluntarily participating in the IMAGE program, a company can reduce unauthorized employment and the use of fraudulent identity documents. As part of IMAGE, ICE and U.S. Citizenship and Immigration Services (USCIS) will provide education and training on proper hiring procedures, fraudulent document detection, use of the E-Verify employment eligibility verification program and anti-discrimination procedures. Employers seeking to participate in IMAGE must agree to:
• Complete a self-assessment questionnaire;
• Enroll in E-Verify;
• Enroll in the Social Security Number Verification Service;
• Adhere to IMAGE Best Employment Practices;
• Undergo an I-9 audit conducted by ICE; and
• Review and sign an official IMAGE partnership agreement with ICE.
Upon enrollment and commitment to DHS’s best hiring practices, program participants will be deemed “IMAGE Certified” – a distinction that DHS believes will become an industry standard. The results of the IMAGE program and participation in IMAGE by partners in industry will serve to guide DHS in shaping future worksite enforcement policy and legislation.
IMAGE members participate in DHS’s E-Verify employment eligibility verification program, administered by USCIS. Through this program, employers can verify that newly hired employees are eligible to work in the United States. This Internet-based system is available in all 50 states and is free to employers. It provides an automated link to the Social Security Administration database and DHS immigration records. To sign up for participation, visit the registration Web site https://www.vis-dhs.com/EmployerRegistration/.
Best hiring practices
The following checklist provided by ICE can assist you in verifying the immigration status of an applicant for an open position at your company.
• Use the E-Verify employment eligibility verification program for all hiring.
• Establish an internal training program, with annual updates, on how to manage completion of Form I-9 (Employee Eligibility Verification Form), how to detect fraudulent use of documents in the I-9 process, and how to use E-Verify.
• Permit the I-9 and E-Verify process to be conducted only by individuals who have received this training – and include a secondary review as part of each employee’s verification to minimize the potential for a single individual to subvert the process.
• Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 and electronic verification process.
• Establish a self-reporting procedure for reporting to ICE any violations or discovered deficiencies.
• Establish a protocol for responding to no-match letters received from the Social Security Administration.
• Establish a tip line for employees to report activity relating to the employment of unauthorized aliens, and a protocol for responding to employee tips.
• Establish and maintain safeguards against use of the verification process for unlawful discrimination.
• Establish a protocol for assessing the adherence to the “best practices” guidelines by the company’s contractors/subcontractors.
Submit an annual report to ICE to track results and assess the effect of participation in the IMAGE program.
This accident could have possibly been prevented by due diligence and following the guidelines set out by ICE and the state DOT. It is critical that your Human Resource (HR) department follow these guidelines.
If you do not have an HR department, then you should consult an employment attorney to help you in developing interview and hiring guidelines that would demonstrate that you performed the required document verification.