The Immigrant Population’s Role in Construction

Immigrants will continue to be a major source of new workers in the United States. In particular, Hispanics are among the nation’s fastest growing minority group. In 2006, Hispanics comprised about 14.5 percent of the population. The number should grow to 18 percent by 2020, and 25 percent by 2050.According to the U.S. Department of Labor, Hispanics make up approximately 50 percent of the workforce in the construction industry. This means that construction business owners must learn to identify and examine the complex issues a rapidly increasing Hispanic workforce poses for them.

Immigration and Legal Issues

During fiscal year 2007, Immigration and Customs Enforcement (ICE) worksite investigations resulted in 863 arrests on criminal charges and 4,077 administrative arrests for immigration violations. In December 2007, ICE charged a Utah construction contractor with federal criminal charges of smuggling illegal alien workers into the United States and requiring them to work for the construction business to pay off their smuggling debt. On February 12, 2008, a U.S. District Court Judge sentenced a construction owner to six months in federal prison for harboring illegal aliens after he transported and provided housing for them during a construction project.

Employers need only look at recent headlines to see that the Department of Homeland Security (DHS) Secretary Michael Chertoff is serious about enforcing this country’s immigration laws, as he promised to do in August 2007. In the past year, ICE publicly raided several companies, ranging from multinational corporations to smaller businesses, creating both legal and publicity nightmares for those companies. Yet, despite this onslaught of public enforcement, ICE publicizes their tactics and focus areas of enforcement on its website and in interviews with the media. The following is a list of ten tips employers can use to increase compliance with immigration laws.

• Use Updated Form I-9 (Rev. 06/05/07) N

While the I-9 form continues to request the same information of newly hired employees, there are minor changes in the instructions, the form itself and the list of acceptable documents. Therefore, it is important to provide the new employee with the latest version of the I-9 and instruction sheet. Note that page two of the latest version of the I-9 contains a new list of acceptable documents that an employee can use to establish identity and employment eligibility. The best place to start is by downloading the latest I-9 form at www.uscis.gov/files/form/i-9.pdf.

• Visit ICE’s Website

The ICE website, www.ice.gov, includes a list of best hiring practices, ICE news releases on worksite enforcement actions, information on various tactics ICE uses in building civil and criminal cases and even Chertoff’s blog. The ICE website should become a favorite for those in the industry concerned about immigration.

• Establish an Internal I-9 Training Program

Employers and their human resources staff should review the M-274 handbook (available for download from www.uscis.gov) and become familiar with the I-9 process. ICE agents scrutinize I-9s, and if they notice non-compliance or a pattern of identity fraud, they will expand their search to other facilities or eventually go company-wide. The training program should focus on proper completion of the I-9 and detecting fraudulent documents. One of the new changes in the latest version of the I-9, which the M-274 handbook explains, is that providing the Social Security number is now optional. However, the new employee must provide a Social Security number to employers participating in the E-Verify Program.

• Use “Red” Ink for Re-accomplished or Updated I-9s

All I-9s should be reviewed for completeness, corrected as required and if any changes to an I-9 are made, do so in red ink, date it and initial the form. Any new I-9s produced due to numerous errors should be attached to the old I-9; an authorized company representative should annotate the I-9 with “Re-accomplished” or “Updated” at the top of the page in red ink.

• Establish a No-Match Letter Protocol

DHS continues to use the receipt of no-match letters as proof of constructive knowledge that employers knowingly hired unauthorized workers. Determine the number of no-match letters received, and resolve the issues accordingly. Additionally, pay close attention to no-match letters when the Social Security number belongs to an infant, a retired or deceased person.

• Avoid Harboring Scenarios

Diligent employers should review their own practices to ensure they are not offering housing or transportation to individuals they know are undocumented, or else the employers offer ICE an opportunity to fine their businesses much more severely than for hiring situations.

This is extremely important for construction business owners who provide their workers with housing accommodations and transportation to jobsites. For example, the Texas business owner sentenced to six months in federal prison had a construction business located in Tyler, TX, but provided transportation to illegal alien workers to North Dakota for a construction project and rented rooms for them. The ICE investigation revealed this business owner knowingly and intentionally hired a large number of illegal workers to construct about 160 restaurants throughout the United States.

• Do Not Contract Out Your Immigration Responsibility

Contracts executed with outside contractors should have language that states they expect their contractors to follow immigration laws. Employers should demand audit rights to check up on contractors who are working on their premises. Contractor failure to comply with immigration laws may expose the employer to ICE investigations and other liabilities.

• Establish a Culture of Immigration Compliance

Companies need to establish, publicize and enforce an immigration compliance policy. The written policy should address issues such as what the company will do when an innocent bystander complains of identity theft and how the company will respond when it receives reports, official or unofficial, that someone is undocumented.

• Arrange an I-9 Audit

Hire an external auditing firm to ensure I-9 compliance. A self-audit is the key to determining any potential liability in case an employer is targeted by ICE or any other governmental agency. At a minimum, employers should conduct an internal audit of I-9s.  Remember, I-9 regulations do not require perfection, but they do value good faith.

• Avoid Violating Anti-Discrimination Laws

While immigration compliance is important, employers should strike a balance between being proactive and not crossing the line and violating anti-discrimination provisions.

Capitalize on Hispanic Workforce

As the immigrant population continues to grow, employers should adopt new business practices to capitalize on the strengths of their multicultural workforce. It is important to communicate effectively with Hispanic workers and other immigrant groups to increase business productivity and minimize risks involved in employing immigrants.

In 2006, there were a total of 354 Hispanic construction fatalities, accounting for 27 percent of all construction fatalities. This means the industry not only loses valuable employees, but also unnecessarily exposes itself to lawsuits. The high number of injuries is attributed to a high number of Hispanics working dangerous jobs, language barriers, horseplay and misuse of equipment, as well as fear of jeopardizing their employment status.

The Occupational Health and Safety Administration (OSHA) provides several resources to effectively communicate with Hispanic workforces. OSHA’s website (www.osha.gov/dcsp/compliance_assistance/index_hispanic.html) provides employers with many resources, such as electronic assistance tools, training, publications and even a Spanish-English dictionary of OSHA terms, general industry terms and construction terms that facilitate communication with the Hispanic workforce in order to prevent and reduce injuries and illnesses.

Employers should provide formal training for supervisors and their workers in Spanish. Training should include the identification, evaluation and prevention or control of general workplace hazards and potential hazards that arise in the construction industry. Make it a best practice to provide the same training in Spanish and English, and translate everything into Spanish or any other language predominantly used by the employer’s immigrant workforce.

Employers should remember they have a duty to provide personal protective equipment, at no cost to the employee, in all operations where there is an exposure to hazardous conditions or where the wearing of such protective equipment will reduce the hazard. OSHA recently issued the final rule on Employer-Paid Personal Protective Equipment (PPE). While the rule went into effect February 13, 2008, employers have until May 15, 2008, to change their existing PPE payment policies to accommodate the rule.

Training in Spanish and PPE will ensure that Hispanic employees have a clear understanding of health and safety rules. Also, promote activities that ensure immigrants feel they are part of the team and encourage them to bring up problems or safety concerns. Employee participation should develop the workers’ commitment to safety and health protection for themselves and their co-workers, and therefore, help lower the number of injuries and fatalities.

Furthermore, Hispanics and other immigrant groups would also benefit from training on U.S. culture and laws. Train Hispanics on Equal Employment Opportunity laws pertaining to sexual harassment and racial issues, including racial interaction between Hispanics and coworkers of other races. Establish a best practice of when the use of English is required for communication purposes rather than establishing an English-only policy because courts will award damages to employees whose employers institute an English-only policy. For example, a Chicago manufacturer was forced to pay over $190,000 for the disparate treatment of Hispanic employees after instituting an English-only rule.

Also seek to understand the cultural differences of the Hispanic workforce. While the majority of the Hispanic workforce is from Mexico and Central America, there are cultural differences among Latin American countries. Understanding cultural differences will avoid national origin discrimination lawsuits.

By taking affirmative steps to identify and examine the complex issues that arise with immigrants in relation to employment, immigration laws and health and safety regulations, construction owners will be able to capitalize on this major source of workers.

Construction Business Owner, April 2008