Todos Tienen Derechos / Everyone Has Rights What LSC Advocates Need to Know About Employment Issues Presenter: Tom Thornburg Co-Managing Attorney Farmworker Legal Services CORT First Friday -- July 11, 2008

Todos Tienen Derechos / Everyone Has Rights Overview of Common Employment Advocacy Common issues: Nonpayment of Wages & Deductions Discharge & Discrimination Unemployment Insurance OSHA, Disability Comp, Taxes

Todos Tienen Derechos / Everyone Has Rights Overview of Common Employment Advocacy What expertise/back up needed? NELP, ACLU, Unions LSC migrant programs “Calendario” – rights & resources

Todos Tienen Derechos / Everyone Has Rights Overview of Common Employment Advocacy What Level of Service? Advice &/or Referrals Brief Service/Negotiation Agency Complaints Full Representation

Todos Tienen Derechos / Everyone Has Rights Wage Claims Nonpayment of Wages Minimum Wage & Overtime Allowable Deductions Wage & Hour Complaints FLSA Attorney Fees or just Call the Employer

Todos Tienen Derechos / Everyone Has Rights 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

Todos Tienen Derechos / Everyone Has Rights 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

Todos Tienen Derechos / Everyone Has Rights Employing Immigrant Workers -- Immigration-Related Discrimination Employment Eligibility Verification – I-9’s Anti-Discrimination provisions of IRCA Social Security “No-Match” letters

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

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.

Todos Tienen Derechos / Everyone Has Rights 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 # __________)

Todos Tienen Derechos / Everyone Has Rights 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

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 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) Employee Hotline (800) Todos Tienen Derechos / Everyone Has Rights

Social Security “No-Match” Letters SSA letters are NOT immigration tools and are not linked to DHS data base Since 1994, sent by SSA to correct errors in data base in order to credit earnings $500 B in uncredited workers’ earnings No fine or enforcement power in SSA DO NOT assume employees are “illegal”!

Todos Tienen Derechos / Everyone Has Rights How to Respond to Social Security “No-Match” Letters Check Records for Errors Inform Employee of the No- Match Letter Request that Employee Check Their Records for Errors Refer Employee to the Local SSA Office Submit any Employer or Employee Corrections to the SSA DO NOT FIRE or SUSPEND employees!

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 Todos Tienen Derechos / Everyone Has Rights

 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

Todos Tienen Derechos / Everyone Has Rights If you have any questions, or need printed materials, call the toll free number: Employee: Employer: Web page: /

Todos Tienen Derechos / Everyone Has Rights 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

Todos Tienen Derechos / Everyone Has Rights Workplace Safety & Injuries OSHA Complaints Anti-Retaliation Worker Disability Compensation “Exclusive Remedy” Referrals to “Worker Comp” Bar

Todos Tienen Derechos / Everyone Has Rights Income Tax Issues Low-Income Tax Credits – EITC Substitute W-2s, ITINs Respond to Requests for Info Law School Tax Clinics, MPLP

Todos Tienen Derechos / Everyone Has Rights 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.

Todos Tienen Derechos / Everyone Has Rights Contact Tom Farmworker Legal Services (269)

Todos Tienen Derechos / Everyone Has Rights