OMG! I Think My Employee is Illegal!

Happy Birthday, Big Guy!

It was yesterday, Little Man.  But thanks.  What's new?



Well Spring is here, and my landscaping business is extremely busy these days.  But I may have a problem with some of my laborers.

What’s that?

Well, I just received a “no match” letter from the Social Security Administration (SSA) saying the social security numbers for some of my workers do not match their names on my payroll.  I guess I need to fire them.

Actually, you don’t.  In fact, if you do, you may open yourself up to liability.

Huh?

Well, let me ask you this: When you first hired these people, did you verify their work authorization on Immigration Form I-9?

Oh yeah, we do all that paperwork.  Keep it on file for three years, then get them to fill out the forms again.  8 U.S.C. § 274A(b). 

Great.  What kind of proof of work authorization did they give you?

 Social Security card and a state of Washington driver’s license. 

 Hmmm.  Well, Washington is the last state in the U.S. to not require proof of citizenship or a lawful presence to get a driver’s license.

 So, how does that affect me?

 First, you did nothing wrong by simply accepting the Washington driver’s license as acceptable photo ID on the I-9 so long as it appeared legitimate on its face.

It did.

Okay.  With respect to receipt of a “no match” letter, federal law prohibits you from assuming it conveys information regarding the employee’s immigration status.  In fact, the letter itself usually states the information provided “does not make any statement about…immigration status” and “is not a basis, in and of itself, to take any adverse action against the employee.”  Aramark Facility Services v. SEIU, 530 F.3d 817, 826 (2008), quoting the Social Security Number Verification Service Handbook.

Yes, the letters I received say exactly that.  So what do I do?

Relax.  Employers do not face any penalty from the SSA, which lacks an enforcement arm for ignoring a no-match letter.  The IRS also imposes no sanctions stemming from a “no-match” letter, and requires no additional solicitations of an employee’s social security number unless it sends a “penalty notice” to the employer indicating that the social security number is incorrect.  Was any such letter delivered from the IRS?

No.

Good.  Now, at a minimum, you need to simply give a copy of the letter to the employee.  In theory, their main purpose is not immigration-related, but rather to simply indicate to workers that their earnings are not being properly credited.  Aramark Facility Services v. SEIU, 530 F.3d 817, 826 (2008), citing the Deputy Commissioner of the SSA. 

Okay.  Then what?

 You may then ask the employee to confirm his/her name and social security number as indicated on the Form I-9 in your employment file.

 Can’t I just ask them if they are illegal?  I'm sure these guys would just admit it to me.  Then I can tell them to pack their bones and go hit the bricks.

 

 ABSOLUTELY NOT!!!

Why?

 Under the anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA), employers are prohibited from committing an “unfair immigration-related employment practice.”  Discrimination on the basis of national origin or citizenship status is prohibited under IRCA in hiring, recruiting, referring for a fee, and discharging.  8 U.S.C. § 1324b(a)(3)(B).  It is also an unfair immigration-related practice for an employer to require more documents than the law requires or to refuse documents that “on their face reasonably appear to be genuine” for verification purposes.  8 U.S.C. § 1324b(a)(6). 

But I’m pretty sure these guys are illegal after receiving these “no match” letters.

 Doesn’t matter.  If they maintain that their names and social security numbers are correct and the Washington driver’s licenses are valid, the “no match” letters are simply an issue between them and the SSA.

Wow.

Good practice is to simply inform employees of the mismatch and leave it to the individual worker to resolve the discrepancy with the SSA.  Under current law, an employer is not required to conduct follow-up activity after receipt of a “no-match” letter. 

Thanks, Big Guy.

Any time.  For a list of “Do’s and “Don’ts” from the Department of Justice, check out: http://www.justice.gov/crt/about/osc/pdf/publications/SSA/Employers.pdf   

Of course, this information is intended for general information purposes only, and is not legal advice. Legal advice depends on the specific facts and circumstances of each individual's situation. Those seeking specific legal advice or assistance should contact a qualified attorney regarding the subject matter.

The BCS is Complete B.S.

Talk about a nail-biter, can’t believe Okie State got that close in the final vote for the BCS Championship Game!

Well, that’s what happens when the system relies on human voting and computer models instead on competition on the field.

You think I give a damn?

Well, you might if the non-BCS conference schools grow a pair and initiate an anti-trust lawsuit.

Huh?

Under federal anti-trust law, “every contract, combination in the form or a trust or otherwise, or conspiracy, in the restraint of commerce” is illegal.  Sherman Act § 1

How does that apply to the BCS?

An argument can certainly be made that by only including six so-called “Automatic-Qualifying conferences” (AQ’s are the SEC, Big 12, Pac-12, Big Ten, ACC, and Big East) to play in the 4 premier bowl games (Sugar, Rose, Orange, and Fiesta), as well as the “National Championship Game,” the BCS is restraining commerce.

How is a college football game considered “commerce?” 

The five BCS games this year will pay-out $123MM this year – all to AQ schools – that’s some serious commerce.

So what’s the antitrust violation?

By excluding nearly half of the NCAA schools competing in the Bowl Subdivision (formerly 1-A), the BCS shields preferred schools from competition in the “National Championship Game.”

As well as that pile of bones handed out, right?

Exactly.

So you’re saying the Federal Department of Justice needs to investigate?

Not necessarily.  Section 4 of the Clayton Act creates a private right of action for any person who shall be injured by reason of anything forbidden in the antitrust laws, and they can receive triple damages, if successful.

So who would that be?

Boise State and TCU (Mountain West Conference).

Well, I just got one thing to say.  Some people aren’t gonna like it.

What’s that?

Roll damn Tide.

Roll damn Tide.

May all your dreams be filled with sugar plums tonight,

MERRY CHRISTMAS TO ALL, AND TO ALL A GOOD NIGHT!

Of course, this information is intended for general information purposes only, and is not legal advice. Legal advice depends on the specific facts and circumstances of each individual's situation. Those seeking specific legal advice or assistance should contact a qualified attorney regarding the subject matter.

You Don’t Have to Lose Your Shirt on a Short Sale

Yeah, it's been awful. When my $300K 5-yr Adjustable Rate Mortgage came due in 2010, I was under water so much I couldn't refinance.

You didn't qualify for Obama's 

Dog House Reinvestment Act?

Please. Don't get me started.

The bank rejected the contract you had last spring, right?
What changed?

I stopped paying them.

Huh?

It's crazy, I know. When I gave them that $250K offer, I was completely current. They wouldn't even look at my Personal Financial Statement (PFS), much less talk about a short sale. The bank representative actually told me that I had to be 90 days behind in order for them to even consider a short sale.

That screw up your credit score though, right?

Small price to pay. In any event, six months later, after not making the monthly payment, socking away the extra bones, I got another buyer, this time for $175K.

And they accepted that?

Sure did. After they saw I don't even have a tree to whiz in, based on my PFS.

Won't you now get a hefty 1099 from the bank for the debt forgiveness of $125K? And pay income tax on that shortfall?

Nope. That's the milk-bone on top. This was a rental property that I put in the name of my company; I only guaranteed the debt.

I don't get it.

IRS Form 1099-C for debt cancellation only goes to the borrower – in this case Bruno'z Propertiez, LLC

But that will still flow through to you, as a single member LLC, won't it?

Nope. Tax wise for the LLC, I lose the entire asset ($300K basis), which more than offsets the income ($125K).

And that’s it?

I’ll just file a final return at year end, with no residual income to me personally.

Nice job, little man.

Of course, this information is intended for general information purposes only, and is not legal advice. Legal advice depends on the specific facts and circumstances of each individual's situation. Those seeking specific legal advice or assistance should contact a qualified attorney regarding the subject matter. 

Kardashian’s keeping the ring!?! Can I get mine back?

http://www.forbes.com/sites/jennagoudreau/2011/11/02/should-kim-kardashian-return-her-2-million-engagement-ring/


What's the matter, little man?

Oh, big guy.  My fiancée called off the wedding.

You’re kidding me!  What happened?

I have no idea.  She said she felt like she was being “rushed” into it too soon.

So is it just postponed?

No.  She said it’s over.  But that’s not the worst part.

What’s that?

The bitch won’t give me back the ring.  I spent 500 bones on that thing!

I think you can get that back.

Really?  How so?

In Georgia, gifts made in contemplation of marriage are subject to an implied condition that they are to be returned if the recipient breaks the engagement.  Guffin v. Kelly, 191 Ga. 880 (1941). 
That is, the acceptance of engagement gift (Q: Will you marry me? A: Yes) carries with it a condition precedent (marriage) that must be performed before the contract becomes absolute
and obligatory on the other party.  O.C.G.A. § 13-3-4.

Fantastic!  I guess I won’t go shake down her husband for the bones I spent!

Wait, what do you mean?

Well, she was going to leave her husband and get a divorce in order to marry me.

Well, if that’s the case, then you will likely not be able to recover anything?

Huh?

Entering into an agreement to marry someone at a time when she could not lawfully marry, and giving a ring to further such an unlawful engagement is a defiance of Georgia public policy and

constitutes “unclean hands” so as to bar you from any recovery.  Morgan v. Wright, 219 Ga. 385 (1963).

What if I told you she accepted the engagement ring at Times Square when we were in New York?

Ohhhh brother……


Of course, this information is intended for general information purposes only, and is not legal advice. Legal advice depends on the specific facts and circumstances of each individual's situation. Those seeking specific legal advice or assistance should contact a qualified attorney regarding the subject matter.