What LSC Advocates Need to Know About Employment Issues

1. What LSC Advocates Need to Know About Employment Issues Presenter: Tom Thornburg Co-Managing Attorney Farmworker Legal Services CORT First Friday -- July 11, 2008

2. Overview of Common Employment Advocacy Common issues: Nonpayment of Wages & Deductions Discharge & Discrimination Unemployment Insurance OSHA, Disability Comp, Taxes

3. Overview of Common Employment Advocacy What expertise/back up needed? NELP, ACLU, Unions www.nelp.org LSC migrant programs www.FarmworkerLaw.org “Calendario” – rights & resources

4. Overview of Common Employment Advocacy What Level of Service? Advice &/or Referrals Brief Service/Negotiation Agency Complaints Full Representation

5. Wage Claims Nonpayment of Wages Minimum Wage & Overtime Allowable Deductions Wage & Hour Complaints FLSA Attorney Fees or just Call the Employer

6. Unemployment Insurance • Telephonic Filing & Reporting In Michigan, “MARVIN” speaks Spanish Only 35% of jobless collect UI benefits • Protests & Appeals (Advocates, unions) Thousands of $$ at stake for workers Evidentiary hearing experience

7. Employment Discrimination EEOC Complaints (T.VII, ADA, ADEA, EPA) Caveat: SOL = 180 – 300 days State/Local Civil Rights Laws: religion, race, color, national origin, age, sex, marital status, height, weight, arrest record or disability “Right-to-Sue” Letter -- Attorneys fees Immigration-Related Discrimination (IRCA) = employment bias based on immigration status

8. Employing Immigrant Workers --Immigration-Related Discrimination Employment Eligibility Verification – I-9’s Anti-Discrimination provisions of IRCA Social Security “No-Match” letters

9. Todos Tienen Derechos / Everyone Has Rights Employment Eligibility Verification • I-9s required since 1986 per IRCA • See NEW Form I-9 and Instructions • www.uscis.gov • Complete only at beginning of employment • Verify “identity” & “employment eligibility” • Lists “acceptable documents”

10. Todos Tienen Derechos / Everyone Has Rights

11. I – 9 Process Section 1 Employee Information and Verification • Employee must complete, sign and date Section 1 on first day of work • “Providing the Social Security number is voluntary…” except for employers participating in voluntary “E-Verify” program.

12. I attest, under penalty of perjury, that I am (one of the following): • A citizen or national of the United States or • A lawful permanent resident (Alien # A ___________) or • An alien authorized to work until ___/___/_____ (Alien # or Admission # __________)

13. Section 2 Employer Review and Verification • Examine original document(s) that the • employee chooses to present from List • (within 3 days of starting work). • If documents “reasonably appear” to be genuine and relate to employee, record document(s) in appropriate column(s). • Sign and date certification section

16. Todos Tienen Derechos / Everyone Has Rights “Citizenship Discrimination” • “U.S. Citizen Only” hiring practices or policies • “Green Card Only” hiring policies e.g., requiring Green Card from U.S.C. born in Puerto Rico • Discriminatory hiring procedures e.g., requiring those who “appear foreign” to show work documents before receiving application. • Preferring undocumented or H-2 foreign visa workers

19. Todos Tienen Derechos / Everyone Has Rights Office of Special Counsel • Created to enforce IRCA provisions • Part of U.S. Department of Justice • Accepts “Charges” filed by injured parties • “Telephone Intervention” option Employer Hotline (800) 255-8155 Employee Hotline (800) 255-7688

20. Social Security “No-Match” Letters

21. How to Respond to Social Security “No-Match” Letters

22. Todos Tienen Derechos / Everyone Has Rights How “E-Verify” Works • New employee fills out I-9 (after hire) • Employer enters info from I-9 into E-Verify • E-Verify searches SSA and DHS databases • Search results in 3-5 seconds: • Employment Authorized • SSA Tentative Non-confirmation • If TNC, program does a second round search of DHS data within 24 hours resulting in EA or TNC • Not mandatory for most typical employers

23. DHS Study Found Violations • Pre-Employment Screening • Not Allowing Workers to Correct Errors • Not Informing Workers of E-Verify participation • Refusals to Hire/Premature Terminations • Privacy and Training Concerns • Inaccuracy of DHS Data Base

24. If you have any questions, or need printed materials, call the toll free number: Employee: 1-800-255-7688 Employer: 1-800-255-8155 Web page: http://www.usdoj.gov/crt/osc/ Email: osccrt@usdoj.gov

25. Wrongful Discharge Violation of Statutes? e.g., IRCA, Ag. Worker Protection Act e.g., Retaliatory Discharge Breach of Contract? Wage & Hour Agency or Unions or Private Bar Referral

26. Workplace Safety & Injuries OSHA Complaints Anti-Retaliation Worker Disability Compensation “Exclusive Remedy” Referrals to “Worker Comp” Bar

27. Income Tax Issues Low-Income Tax Credits – EITC Substitute W-2s, ITINs Respond to Requests for Info www.irs.gov Law School Tax Clinics, MPLP

28. Next Steps Talk with Clients about their jobs. Pick up the phone or mouse. Call the employer, IRS, or other state or federal agency. Non “experts” can get great results for clients.

29. Contact Tom Farmworker Legal Services (269) 427-1622 thornbur@umich.edu

30. www.FarmworkerLaw.org