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United Fresh Comments on Proposed Changes to Enforcement of Immigration and Nationality Act

Jul 14, 2016

United Fresh joined industry allies in providing comments on a recently issued a notice of proposed rulemaking by the Department of Justice on the “Standards and Procedures for the Enforcement of the Immigration and Nationality Act.”

The Proposed Rule threatens to impose penalties on employers far beyond what Congress ever intended or how the underlying statute has ever been applied. The current rule, in place for nearly 30 years, requires two things to find a violation and impose penalties against an employer: (1) a discriminatory intent or purpose on the part of an employer; and (2) proof that the charging party was harmed. This is supported by judicial decisions and consistent with established Title VII law. The proposed rule would erase those two requirements and establish a strict liability rule.

For small and seasonal businesses, particularly those in agriculture, landscaping or forestry, workers are hired quickly at the beginning of the growing or working season, and there is high turnover during the season. A small family-owned business might have only a handful of year-round employees but may hire dozens or even hundreds of seasonal workers during a season to replace those who leave after a few weeks or even a few days. A limited staff, often the owner or a family member, must complete a Form I-9 for each of those workers, in a workforce that is often comprised of non-citizens and workers with little or no proficiency in speaking or reading English. If a lawful permanent resident presents a “green card” to complete the I-9 process but a U.S. citizen provides a driver’s license and Social Security card, without any prompting by the employer and where both are hired and begin work immediately, there is no intent to discriminate, no act of discrimination by the employer, and no harm to either employee. Still, such a situation could trigger sizable penalties under this new rule.

This is a highly technical rule dealing with nuanced arguments about the degree of intent or purpose behind an action, but it carries a very real possibility of injuring small and seasonal employers, particularly those in agriculture. The burden of this rule on the employer community will also be far greater than the estimate provided in the notice of proposed rulemaking. The rule, as proposed, represents a costly, dangerous, and radical departure from longstanding substantive and procedural law and as a result, United Fresh and our counterparts in the industry urge that the proposed changes be revised or scrapped. The public comment period for the proposal closed October 14, but United Fresh will provide additional updates on this issue.

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