The Human Element

People drive the recycling industry. No matter how sophisticated the equipment has become, the business still relies heavily on a strong human element—from the entrepreneurial spirit of business owners to the individuals running the operation on the plant floor.

This human factor means labor issues continue to be a top concern for recyclers, and as the U.S. enters another election year, the topic of immigration can be found weighing on the minds of politicians and business owners alike.

In light of Congress’s failure to approve a comprehensive immigration reform bill in the summer of 2007, attention to the issue has only heightened, and recyclers should be aware of how immigration regulations can affect their businesses.

The failure of 2007’s immigration reform package means there are no new laws governing how employers document and verify that their employees are indeed authorized to work in the United States. However, just because there is no new legislation doesn’t mean changes aren’t taking place,

One of the most notable changes in the enforcement of immigration laws is that employers can now find themselves criminally liable for employing unauthorized workers. "In the past 18 months, there’s been a sea of change in how the government approaches enforcement," Nice says. She says the highly publicized raids by ICE (Immigration and Customs Enforcement) are only part of the story. "After the fact, assistant U.S. attorneys are going for criminal liability against the company," she says. This is quite a departure from the more common civil charges and more modest fines of immigration enforcement past, she adds.

Furthermore, the government on both the federal and state level is exploring regulating the way employers verify their workforce. According to Nice, a provision in some bills that have been reintroduced in Congress since the failure of the immigration bill would require employers to participate in an electronic verification system. Currently known as E-Verify, the system is operated by the Department of Homeland Security (DHS) with the Social Security Administration (SSA). It has been in use on a voluntary basis for 10 years and is now an Internet-based system that allows employers to check the information new hires provide on their I-9 verification forms against the millions of records in the DHS’s and SSA’s databases, according to information on the U.S. Citizenship and Immigration Services Web site at www.uscis.gov.

According to Nice, the system has shown less than 100 percent accuracy in its decade of use, turning back certain percentages of false positives as well as false negatives for the workers checked.

States have different approaches to the use of E-Verify, Nice adds. "There’s a patchwork of rules evolving in various states that are moving in different directions," she says. "The recycling industry is not a regional industry. So recycling companies are going to have to look at what their requirements are in the states they conduct business as far as E-Verify."

Considering the harsher consequences of being found out of compliance with immigration regulations, Nice says it is well worth employers’ time and attention to implement best practices regarding authorizing their workforces.

Nice says a good first step is an internal audit to establish what policies are in place and how they are working.

However, Nice notes that having a policy in theory isn’t enough—establishing a written record is also important. She advises employers to make sure they have a written manual that documents the company’s stance. Nice advises employers to ask, "Do you have a code of conduct whereby it is clear that the company culture does not support the hiring of unauthorized workers?" Nice continues, "You have to have written policies. You have to show you take action."

If ICE decides to investigate, written documentation of a company’s approach to worker authorization as well as how it deals with discovering unauthorized workers on its staff can make all the difference, Nice says.

Another issue to watch is the no-match letters issued by the SSA, where the SSA has determined that a worker’s provided Social Security number does not match other identifying information, such as name, gender or birth date, on file, Nice says. "It’s always been a question of what employers are supposed to do in response to an SSA no-match letter," she says.

Under a DHS proposed rule, no-match letters must result in either corrected information to prove that the worker in question is authorized or the termination of that employee within 90 days. Nice says that the DHS proposal would use no-match letters as a basis for investigation, though this practice was challenged in federal court and is under review. Nice says the first quarter of 2008 could bring new DHS regulations in response to the lawsuit, with new rules that penalize employers for not taking appropriate action when notified of unauthorized personnel by a no-match letter. She advises employers to pay close attention on this issue. "Keep on top of it yourself or seek outside counsel," she says.

Nice says that in the current climate of strict enforcement, employers must make compliance a top priority.

The author is associate editor of Recycling Today and can be contacted at jgubeno@gie.net.