Federal immigration reform has seized public attention for the first time since Congress last made major changes in immigration policy in 1996. People are taking to the streets and engaging in heady debates about what being a nation of immigrants really means. Our answer will shape the workplaces of tomorrow.

Yet Congress has not tapped the unique opportunity to correct past legislative mistakes by aligning our workplace laws and immigration policy. The proposed immigration reforms—in particular the plans to expand an employment database system that has been error-filled in its pilot phase—will harm workers unless those reforms provide increased workplace protections for both legal and unauthorized immigrants.

In the nation’s Capitol, those leading the charge include Representative Sensenbrenner (R-WI), Senators Cornyn (R-TX) and Kyl (R-AZ), Senator Frist (R-TN), Senators Hagel (R-NE) and Martinez (R-FL), Senators Kennedy (D-MA) and McCain (R-AZ), and Senator Specter (R-PA). Their bills aim to stem the tide of illegal immigration, monitor future flows, and deal with the more than eleven million unauthorized immigrants already here.

One under-the-radar proposal would expand existing systems that employers use to check the validity of their employees’ documents. Most bills would make the nation’s nearly six million employers verify new employees’ information over the phone or online. The mandatory "electronic employment verification system" would take effect in anywhere from six months to five years.

History has shown that such verification systems can go badly wrong when implemented. The Immigration Reform and Control Act (IRCA) of 1986 mandated for the first time that employers review new employees' authorization to work in the United States IRCA requires everyone at the time of hire to fill out a Form I-9 and to present identification. Employers face sanctions for not complying with these rules. Though IRCA initially did not punish workers for using fake documentation, Congress later added such penalties. In 1996, Congress went one step further: it authorized a pilot program to find mismatches between I-9 forms, Social Security data, and Department of Homeland Security records in order to hunt down workers using false documents. The Social Security Administration (SSA) also sends employers so-called no-match letters when the names or Social Security numbers that workers put on their W-2 forms do not conform to SSA records.

This pilot program has been riddled with administrative problems. Although many no-match letters correctly highlight unauthorized work, inevitable glitches such as typos, name changes, and Spanish-surname confusions have caused high error rates. Moreover, the SSA updates its records to reflect immigration status changes only at the worker’s request, so legal immigrants who do not know about this rule get into trouble as they move through the naturalization process. The Government Accountability Office (GAO) has studied the various administrative problems associated with the pilot programs and found that employers assume that mismatched information equals illegality; 30 percent of notified employers immediately restricted employees' work assignments even though they were prohibited from doing so.

The pilot electronic database system also has overlooked and even exacerbated central flaws in the basic concept of the IRCA’s employment verification regime. First, some firms that fear IRCA sanctions for knowingly employing undocumented workers have refused to hire legal workers because they look foreign or have “foreign-sounding” names. When drafting the IRCA, Congress tried to anticipate this reaction by prohibiting such discrimination and creating the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to prosecute the inevitable violators. But without sufficient resources, such oversight has not been able to shape employers’ behavior.

Some employers avoid the verification system by not checking documents when hiring workers, but later demand documents in so-called “compliance” with the IRCA when workplace disputes arise over safety, union organizing, or other protected rights. As a baseline matter, labor and employment laws grant full protection to the millions of undocumented workers in this country, though certain remedies are unavailable. When a retaliatory motive can be proven, the National Labor Relations Board (NLRB) has found such document demands illegal. Yet employers, workers, and even courts are legitimately confused about where IRCA compliance ends and where labor protections begin.

Proponents of expanding the employment verification program argue that the old regime failed mostly because of inadequate technology and under-enforcement by the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement (a partial successor of the former Immigration and Naturalization Service). But enlarging the existing structure will create similar enforcement problems.

Voters of all political persuasions will find this result unacceptable. Those opposing an expanded verification system already come from the left, right, and center; they object to big government, the privacy risks arising from so much centralized data, and the conscription of employers into enforcing federal immigration law.

If it nevertheless commits to a massive new electronic verification system, Congress should evaluate the effects more thoroughly and incorporate worker protections into the text of new legislation. Those critical details should not be left to the agencies and courts to work out while millions suffer.

Congress should begin by fixing a flaw that the IRCA created. To protect workers from retaliatory document requests, employers’ obligations or rights to verify current workers’ documentation should be suspended during labor disputes, as I argue in Suspending Employers’ Immigration-Related Duties During Labor Disputes: A Statutory Proposal. Next, to avoid the problems that unreliable databases create, Congress must do more than provide employees with a short period to correct errors; experience has shown that employers take adverse action even during those periods. One option would be to give employees written notice at their homes of any identification mismatch, offering them an actual opportunity to fix mistakes before employers are notified.

Congress also should fund programs to educate workers and employers about their new obligations and to provide legal assistance to workers tagged by the electronic verification system. We spend billions a year on immigration enforcement; let’s give labor and employment law the same kind of attention.

Annie Decker, YLS '07, is the author of a forthcoming Comment, Suspending Employers' Immigration-Related Duties During Labor Disputes: A Statutory Proposal, 115 Yale L.J. 2193 (2006).

Preferred Citation: Annie Decker, Aligning Immigration and Workplace Law, One Step at a Time, Yale L.J. (The Pocket Part), May 2006, http://yalelawjournal.org/forum/aligning-immigration-and-workplace-law-one-step-at-a-time.