There are many issues that can affect the profitability and efficiency of a dairy today. But perhaps the one that tops the list for many dairy farmers is labor and immigration rules.
A panel of lawyers, industry representatives and farmers spoke at the High Plains Dairy Conference recently in Amarillo, Texas.
Sarah Thomas, attorney with Noble & Vapri Immigration Attorneys, led the discussion by detailing the steps dairy farmers should follow if they are served with subpoenas for documentation compliance on their farm, or “targeted enforcement actions” from the government. She spoke about I-9 forms, which verify an employee’s eligibility to work in the United States.
“An I-9 should be on file for every employee, no matter their citizenship status,” she said. “If they are getting a W-2, there should be an I-9 on file. And you need to retain those for one year from termination or three years from the date of hire, whichever is later.”
She outlined what typically happens in a compliance audit and some steps dairy farmers can take to protect their legal interests. First and foremost, she said, is if a Homeland Security auditor or Immigrations and Customs Enforcement agent come to serve a subpoena, have a designated person within the company who will communicate with agents and sign for the subpoena.
“You should respect and comply, but you don’t have to be freely giving information away either,” Thomas said. “You have 72 hours or three business days to comply with the subpoena and if your helpful office manager starts making copies that timeline could be inadvertently waived.” Those 72 hours are critical to helping an employer gather the necessary paperwork and correct any omissions or possible violations in good faith.
If an auditor serves the employer a notice of technical or procedural violation, they have another 10 days to remedy the situation.
“You’re allowed to do that in good faith and a good faith effort to comply is a factor to consider when negotiating any fines that may be issued,” Thomas said. “Making sure you are transparent and above board can go a long way toward good faith and compliance.”
Employers aren’t required to be document experts by the law, Thomas emphasized. If there’s a violation and the employer acted in good faith in gathering and storing the documentation the employee provided, then the worker or former worker is the one in trouble.
“There is also the potential, if the employer asks for too much documentation, that a case could be made for discrimination lawsuits,” she warned. “You’re trying to address Homeland’s wants. But there’s also the Employee and Immigrant Rights Office, which handles charges of discrimination because the employer may have asked for specific documents from some employees and not others.” If a pattern of over documentation can be established, that can result in a claim of discrimination. She advised employers to have legal, written polices in place and do the same thing in every situation.
If there’s a notice of suspect documentation or a notice of discrepancies, the employer is allowed time to remedy that in some manner, Thomas said. Now, if an employee is unable to provide further documentation of their eligibility status, and the employer chooses to keep them employed, then the employer is in violation of the law.
There is a difference between these targeted enforcement actions, or audits, and raids by ICE.
“In a raid, there is no subpoena, but ICE will show up with a warrant,” Thomas explained. Still, there should be a designated person within the business to be the point of contact to protect the rights of the employer.
Additionally:
- Verify the warrant is valid and the scope of the search it outlines. This can be easy as taking a cell phone photo and sending it to your counsel.
- Employers are not obliged to give officers free access to the facility and should keep the officers to the public areas until they have advice from counsel.
- You don’t have to allow officers into employee-only areas of operation if those are clearly marked.
- Workers and employers have the right to not answer questions by agents or officers.
- Conduct your own internal audit of your forms and your response procedures and practice the procedures.
Charlie Garrison, of the Garrison Group, then spoke about immigration reform efforts on Capitol Hill.
“Dairy is different than all other sectors in agriculture,” Garrison told farmers. Other sectors at least had the H-2A program to use, Garrison said, but dairy has never had one. Helping the current workforce is a top priority issue for those lobbying for immigration reform, because any program that makes employers have to start all over with their labor force is not productive, he said.
One such idea in the House of Representatives is to replace or reform the current H-2A visa. The H-2C visa would have a mandatory E-verify component included.
There’s the HR4760 Secure America’s Future Act, which would create a new guestworker program for agriculture only. However, even workers who’ve been employed for 10 or more years would have to transition into the program.
Any immigration reform action has many angles that need to be considered, especially for ag employers. They include the millions of DACA recipients and their families; any required touchback time for visas that takes workers out of critical farm duties; any language that requires the employee to maintain non-immigrant intentions; and caps on the number of visas allowed per year.
Garrison said any immigration fix is going to hinge on the political climate of D.C. and the outcome of the mid-term elections.
Jennifer M. Latzke can be reached at 620-227-1807 or [email protected].
