Doing Business in Columbia County, Oregon: Unauthorized Workers Not Welcome

Doing business in Columbia County, Oregon (the "County") just became more complicated. Employers may lose their licenses, including building permits, if they violate a new voter-passed law prohibiting the knowing or intentional employment of unauthorized aliens. Contractors may also be fined $10,000 for a violation of the new law. The new law extends to any employer conducting business within Columbia County.

On November 4, 2008, voters in the County passed voter-initiative Measure 5-190 by a margin of 57 to 42 percent. As indicated above, Measure 5-190 prohibits the knowing or intentional employment of unauthorized aliens and establishes penalties for its violation. The measure and penalties are in addition to federal prohibitions against the employment of unauthorized aliens.

On November 10, 2008, the Columbia County Board of Commissioners (the "Board") filed a Petition for Validation of Local Government Action (the "Petition") with the Columbia County Circuit Court (the "Court"). The Petition asks the Court to rule on a number of issues related to a proposed ordinance to implement Measure 5-190. Ordinance 2008-6 proposes to amend Measure 5-190 to correct errors and to clarify what the County believes is the voters' intent in passing Measure 5-190.

The Court's decision on the Petition will be binding upon the parties to the Petition and all other persons. "Jurisdiction of the electors [of the County] shall be obtained by publication of notice directed to all electors, freeholders, taxpayers and other interested persons, without naming such electors, freeholders, taxpayers and other interested persons individually." ORS 33.720(2). The notice of the Petition is being published in The Chronicle,a newspaper of general circulation within the County and 'jurisdiction shall be complete within ten days after the date of completing publication." ORS 33.720(2). "Any person interested may at any time before the expiration of the ten days appear and contest the validity of such proceeding or any of the acts or things therein enumerated." ORS 33.720(3). The final date to appear and contest the Petition would normally be December 13, 2008, ten days after the last publication date of December 3, 2008, but since December 13, 2008 is a Saturday, any appearance to contest the Petition must be filed by December 15, 2008.

Measure 5-190, to be implemented by Ordinance 2008-6, requires that the County's legal counsel ("County Counsel") investigate a complaint that an "employer allegedly intentionally employs an unauthorized alien, or knowingly employs an unauthorized alien." Upon a finding that the complaint is not frivolous, County Counsel is required to:

1. Notify the United States Immigration and Customs Enforcement ("ICE") of the unauthorized alien;
2. Notify the local law enforcement agency of the unauthorized alien; and
3. Bring "an action for violation of Section IIA, pursuant to Section IID" of Measure5-190, as amended by Ordinance 2008-6.

The action for violation of the measure/ordinance is an "administrative hearing before the Board of County Commissioners" with any appeal to the Columbia County Justice Court. Any further appeals "shall be in accordance with state statutes governing appeals from the Columbia County Justice Court."

The penalties for a violation of the measure/ordinance are progressive in nature depending on whether the violation is "intentional" or "knowing." For a first offense for a "knowing" violation the Board:

1. Shall order the employer to terminate the employment of all unauthorized aliens;
2. Shall order the employer who is a contractor to be fined the sum of $10,000;
3. Shall order the employer to be subject to a three-year probationary period, requires employer to file quarterly reports with County Counsel of each new employee hired; and
4. Shall order the employer to file a signed sworn affidavit with County Counsel within three business days after the order is issued that the employer has terminated employment of all unauthorized aliens. Failure to file the affidavit will result in suspension of all licenses, including building permits until the affidavit is filed.

For a first offense for an "intentional" violation the Board:

1. Shall order the employer who is a contractor to be fined the sum of $10,000; fine is not subject to suspension and is mandatory;
2. Shall order the employer to terminate the employment of all unauthorized aliens;
3. Shall order the employer to be subject to a five-year probationary period; requires employer to file quarterly reports with County Counsel of each new employee hired at the specific location where the unauthorized alien performed work;
4. Shall order the appropriate agencies to suspend all licenses including building permits and issue stop work orders on all pending building projects for a minimum of ten days; and
5. Shall order the employer to file a signed sworn affidavit with County Counsel within three business days after the order is issued that the employer has terminated employment of all unauthorized aliens. Failure to file the affidavit will result in suspension of all licenses, including building permits until affidavit is filed.

Upon a conviction for a second violation of either a knowing or intentional violation during a probationary period requires the Board to "order the appropriate agencies to permanently revoke all licenses, including building permits, necessary to operate the employer's business." The "order shall also permanently deny the employer the right to obtain licenses including building permits in the future."

After the measure/ordinance becomes effective, every employer in Columbia County, after hiring an employee, "is required to verify the employment eligibility of the employee through the Basic Pilot Program." The Basic Pilot Program is now known as E-Verify. E-Verify is the internet-accessed electronic identity and employment eligibility verification program operated by the United States Citizenship and Immigration Services ("USCIS"). To enroll in E-Verify an employer is required to sign a Memorandum of Understanding ("MOU") with the USCIS. The MOU requires employers to submit to an audit of its Form I-9 records as part of the enrollment process. The MOU also requires employers to:

1. Still complete the paper Form I-9, Employment Eligibility Verification document, but now must require the employee to insert their Social Security Number ("SSN") in Section 1 of the document. Employer may only accept an identity document containing a photograph of the employee;
2. Submit information, using the Form I-9, into the E-Verify program;
3. Record the verification identification number on the I-9 or print out a copy of the transaction record and attach to the I-9 if E-Verify submission returns a confirmation of identity and employment verification for the employee;
4. Print out and provide to the employee a "Notice to Employee of Tentative Non-Confirmation" ("NETN") if E-Verify submission returns a "SSA Tentative Non-Confirmation" notice or a "DHS Tentative Non-Confirmation" notice. The employee must indicate on the employer-provided notice whether they will contest the NETN notice or not contest the NETN notice. Employer and employee must then sign the notice;
5. Print out and provide to employee "Referral Letter" if the employee contests the NETN. Employee will have eight federal government workdays to visit SSA or to call USCIS to resolve the NETN discrepancy. Employer is prohibited from terminating employee during this time; and
6. Upon receipt of "Notice of Final Non-Confirmation" either terminate the employee or notify DHS that employer will continue employment of an employee for which a notice of final non-confirmation was received. Note: Employer that continues employment of employee for which a notice of final non-confirmation is received is subject to a civil monetary penalty between $500 and $1,000 for each failure to notify DHS of continued employment following a notice of final non-confirmation.

It is our recommendation that employers subject to this measure/ordinance take the following steps:

1. Consult with your trade association to determine if the association is going to challenge the measure/ordinance or check with competent legal counsel to determine how you can challenge the measure/ordinance;
2. Evaluate recruitment and hiring processes, including language in any employment handbook, regarding Form I-9. Any employment handbook may need revisions to incorporate language regarding the E-Verify program and confirmation process;
3. Evaluate Form I-9 procedures and conduct an internal audit of I-9s. Correct any errors or complete new I-9s where missing;
4. Analyze the USCIS MOU and enroll in E-Verify. Consult legal counsel as necessary to understand legal responsibility and liability issues;
5. Prepare and publish procedures for administering the E-Verify program or make revisions to existing E-Verify procedures; and
6. Conduct training of all personnel who will administer the E-Verify program.

To read more about the Measure or the Ordinance click here:http://www.co.columbia.or.us/counsel/measure5-190.php.

For more information on this topic, please contact marketing@jordanramis.com or call (888) 598-7070.

 

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