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An amendment sponsored by Senators
Grassley (R-IA), Kennedy (D-MA), Obama (D-IL), and Baucus
(D-MT) that substitutes Title III of the
Comprehensive
Immigration Reform Act of 2006 (S 2611) passed
Tuesday night on a vote of 58 to 40. Among other things,
Title III would create a mandatory Employment Eligibility
Verification System (EEVS) to electronically verify the
employment eligibility of every worker in the country. The
amendment that passed would add antidiscrimination, privacy,
and due process protections to the EEVS created by S 2611.
These improvements do not eliminate the core concerns NILC
has with Title III, but they do considerably improve the
bill, which is likely to pass the Senate.
The underlying bill would
establish a mandatory EEVS without resolving the enormous
practical problems of such a system that are likely to lead
to widespread errors and abuse. It would also have the
effect of pushing undocumented workers ineligible for the
bill's legalization provisions further into the underground
economy. The rights of all workers will be seriously
undermined as long as bad-apple employers continue
exploiting immigrant workers while facing almost no chance
of being prosecuted for providing unsafe working conditions
and for violations of labor laws. Sen. Kennedy offered a
separate amendment to strengthen enforcement of labor and
employment laws that would have, among other things,
clarified that undocumented workers are entitled to back pay
as a remedy for being unlawfully fired for union organizing,
created an exemption to the requirement that the new H‑2C
guest workers must leave the country if they are unemployed
for 60 days, and increased fines for wage and hour and
health and safety violations. This amendment was tabled on
a vote of 56 to 41 -- a defeat for all workers, particularly
in light of the increased worksite enforcement contained in
S 2611. (To see how your senator voted, see
www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00141.
Note that a "yea" vote is to table the amendment.)
The Title III EEVS Amendment
The EEVS created by S 2611 would
build on the Basic Pilot employment eligibility verification
program, which has been plagued by
significant problems, including inaccurate information
entered in the Dept. of Homeland Security (DHS) and
Social Security Administration (SSA) databases on which it
relies, lack of adequate privacy protections, and misuse of
the program by employers. (More information on the Basic
Pilot is available
here.) The program, which currently serves slightly
over 6,000 employers, would be mandatory for all employers
in the country. Though the EEVS would still be mandatory
under the Title III amendment that passed, the amendment
significantly improves S 2611 by providing important worker
protections. It also is an enormous improvement over the
Border
Protection, Antiterrorism, and Illegal Immigration Control
Act of 2005 (HR 4437), which passed the House last
December. The staff of Senators Kennedy, Obama, and Baucus
should be commended for their excellent work and for
tirelessly advocating for these protections.
Provisions from the underlying
title remain that will have an adverse impact on workers,
including a significant limit on the documents that an
individual can present to prove identity when seeking
employment. Specifically, under the title's provisions, to
establish that they are employment-eligible immigrants would
be allowed to present only an employment authorization
document (EAD) issued by immigration authorities, and U.S.
citizens would have to present either a U.S. passport or a
driver's license or state-issued ID that complies with the
REAL ID Act -- even though no state is currently in
compliance with REAL ID. (For more details on concerns with
the underlying title, see NILC's "Provisions
of the Comprehensive Immigration Reform Act of 2006 that
Affect Immigrant Workers").
Note
that in addition to the improvements to Title III described
below, this amendment also eliminates provisions contained
in the original bill that would have required employers to
maintain records of all actions taken to resolve any issue
raising a "reasonable doubt" as to the validity of an
employee's identity or employment authorization, including
actions they take when they receive
SSA
"no-match" letters.
The new language requires employers to maintain records of
any action taken and copies of any correspondence they have
written or received related to the verification of an
individual's identity or employment authorization.
Significant provisions that were
added to Title III by the amendment include the following
(click
this link for a detailed summary of the amendment in chart
form):
— Amending the
section of the Immigration and Nationality Act (INA)
relating to unfair immigration-related employment practices
to explicitly apply to employment decisions related to the
new EEVS;
— Expanding the
categories of immigrants who can file an immigration-related
unfair employment practices complaint under the INA;
— Increasing fines
for violations of the INA's antidiscrimination provisions;
— Prohibiting
employers from using the EEVS to discriminate against
workers; and
— Providing $40
million in funding for the Office of the Special Counsel for
Immigration-Related Unfair Employment Practices to educate
employers and employees about antidiscrimination policies.
— Requiring employers
to provide employees with information in writing (in a
language other than English if necessary) about their rights
to contest a response from the EEVS, and the procedures for
doing so;
— Creating a "default
confirmation" when DHS cannot issue a final notice of
employment eligibility within 30 days of the initial
inquiry. The default confirmation will remain in place
until the Government Accountability Office (GAO) can certify
that EEVS is able to issue a final confirmation of work
eligibility to individuals who are eligible for employment
within 30 days of the initial inquiry at least 99 percent of
the time;
— Allowing
individuals to view their own records and contact the
appropriate agency to correct any errors through an
expedited process; and
— Creating an
administrative and judicial review process where individuals
can contest findings by DHS, and seek compensation for the
wages lost where there is an agency error. However,
attorneys' fees and costs were not included in the final
amendment.
— Requiring
minimization of the data to be both collected and stored,
and creating penalties for collecting or maintaining data
not authorized in the statute;
— Placing limits on
the use of data, and making it a felony to use the EEVS data
to commit identity fraud, unlawfully obtain employment, or
for any other purpose not authorized in the statute; and
— Requiring the GAO
to assess the privacy and security of the EEVS, and its
effects on identity fraud or the misuse of personal data.
The Kennedy Labor Amendment
This amendment
would have enhanced the enforcement of labor protections for
U.S. workers and guest workers. Opponents argued that there
have been no hearings on the amendment and moved to table
it. (For a copy of the language, click
here.) Provisions included:
-
Increasing fines and remedies under
the Fair Labor Standards Act (FLSA), the Occupational
Safety and Health Act (OSHA), and the National Labor
Relations Act (NLRA);
-
Eliminating
the conflict the Supreme Court identified in its
Hoffman Plastic Compounds, Inc. v. NLRB decision
(holding that undocumented workers are not entitled to a
back pay remedy for being illegally fired for union
organizing under the NLRA) by making back pay and
monetary remedies for violations of labor and employment
law available to all workers regardless of their
immigration status;
-
Providing
that 25 percent of all fees collected under the guest
worker program be dedicated to enhanced U.S. Dept. of
Labor (DOL) enforcement of the FLSA, OSHA, and the labor
provisions of the immigration bill;
-
Increasing
bilingual DOL investigative staff; and
-
Providing
that the 60-day period for guest workers to find another
job after being discharged be extended where the guest
worker claims his discharge was in retaliation for
exercising a right guaranteed by the law.
Mandatory EEVS has almost
universal support in Congress, while an amendment that would
improve the lives of all workers in the U.S. through
increased labor protections was rejected. This highlights
the incoherent policies that are at the core of S 2611,
which fail to recognize the economic incentives employers
have to exploit workers.
* * *
The antidiscrimination, due
process, and privacy protections that were built into the
amendment that passed are a great improvement over the
original language. If this bill is enacted, these
provisions at least will provide some basic minimal
protections for our civil liberties and for
employment-authorized workers who are likely to face
discrimination and lose jobs because of the government's
inaccurate databases. However, the notion that a mandatory
EEVS program is the panacea that will deter employers from
hiring undocumented workers is at best deeply flawed when
there is no political will for meaningful enforcement of
stronger labor and employment laws. The lessons learned
over the last 20 years with the current employer sanctions
system that have resulted in widespread labor law abuses
demonstrate that focusing on labor law enforcement is a
critical and indispensable component of any true
comprehensive immigration reform legislation.
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FOR MORE
INFORMATION, CONTACT
Marielena Hincapié, director of programs |
213-639-3900 x.112
Josh Bernstein,
director of federal policy | 202.216.0261 x.2
Tyler Moran,
NILC policy analyst | 208.333.1424
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