From The Student Life: Link to the original article
By ASHVIN GANDHI
Editor’s note: the following letter was originally submitted to Professor Michael Teter in response to his first letter to the Pomona College Board of Trustees regarding documentation reviews, which was published on The Student Life website on Dec. 1 and in the Dec. 2 print issue. The author would like to note that there has been continued correspondence between himself and Professor Teter and that this letter should not be taken to fully or entirely accurately reflect his most current views on the matter.
To the Editor:
I found Michael Teter’s letter to the Board of Trustees very interesting, and feel that he made a number of valid points. I also want to note that I appreciate his actions to stop what he believes is injustice. That being said, I would appreciate it if he would respond to a few points:
● Teter cited the lawsuit against Maricopa County Community College when discussing the “real legal risk associated with overzealous employer efforts to verify the status of employees;” however, the link in his citation reveals that in the Maricopa case “the district had a policy of requiring newly hired workers who are not U.S. citizens but are authorized to work to present specific documentation that is not required by federal law.” While the aforementioned is illegitimate discrimination is clear from both page four of the I-9 document and from an employer information bulletin released by the government (see Footnote 1). To the best of my knowledge, Pomona College does not demand any forms not required in the I-9, nor does the college specify which items for List A, B, an C that it will accept, nor has its choice of whom to reverify been based on race or nationality (rather, it was based on an independent, outside examination). While Teter did not state that the reverification at Maricopa is the same as the one here, his position as a professor will undoubtedly lead his readers to be misled.
● I think Teter and others misinterpret the meaning of the third party investigator’s findings. Just because the college’s hiring practices were not found to be in direct violation of the law prior to the investigation does not mean that the college is not legally obligated to reverify documentation deficiencies in order to legally allow continued employment. Laws and information issued to employers regarding illegal employment of undocumented workers frequently uses language such as “if they [the employer] should have known that an employee is unauthorized to work in the United States…” (see Footnote 1). It does not seem unreasonable that an employer told by an investigating third party that some employees may not be authorized to work is sufficient evidence to deem (from the point that the employer is told forth) that the employer “should have known.” Once the college discovers that some documentation is deficient, they do in fact have a legal obligation to request (and terminate employment if they do not receive) a complete I-9 (see Footnote 1), and I have little doubt that they were advised as such.
● Teters argues that the coinciding of document checks with (some of the) workers’ push for unionization might be interpreted as a violation of fair labor practices. However, he fails to note two key things. First, the board/administration has provided reasons—ones unrelated to the unionization process—for re-verifying documents, and as such, it seems (granted, I do not have a law degree, so I am speculating here) that the burden now would stand on the complainant to demonstrate that the college’s actions were intended to intimidate/oppose the unionization process. It seems far less likely (to me at least) that one would be able to prove that the college’s choice was anti-unionization-driven than it would be for a government agency to find that the college’s hiring practices have failed to comply with law (especially given that more than twenty employees are unable to produce documentation). Second, Teter failed to recognize that the push for unionization (from some workers) has been happening for at least as long as I’ve been at the college (2.5 years). As such, it seems rather difficult to argue that the college made its decision in order to intimidate workers (if so, why now?), and it also makes the demand unreasonable that the college wait until all unionization efforts have completed before attempting to comply with I-9. How long should they wait? Another 2-3 years?
● Teter brings up valid points about the relatively small probability that any government agency will request I-9 documentation from the college. However, this kind of analysis supposes that the college’s adherence to the law has no value (so long as they don’t get caught). I am not sure that “laws should only be obeyed if you probably won’t get caught” is the right example for the board and administration to set for students.
● Teter mentions concern over the lack of specification as to who filed the complaint; however, it was released in a previous administrator’s email that the complainant is an employee of the college that is not an administrator. Given that the complainant is an employee of the college, there should be little doubt that the board has both the person’s personal information as well as reason to believe that the accusations are very possibly well-founded. Thus, the likely meets the standards Teter cites—the standards for a USCIS standards for justifying an investigation—which are much higher than the standards we would expect the board to have in order to deem an investigation worthwhile. I can understand the frustration with not being told who made the allegations, but (though I can’t comment on the legality of it) I think that decision for non-disclosure was made in order to protect the complainant. Could you imagine what would happen to that person if their name were made public?
Finally, and most importantly, I think it is important to put oneself in the shoes of the board members and administrators. While it is very likely that it would have just been “business as usual” if the complaint weren’t investigated by the board and the documents weren’t reverified by the administration, the case in which the school did happen to be I-9 audited very well could have been catastrophic for the board, the administrators, and the college as a whole. It is easy for us to sit back and criticize and vilify the administration and board, but that is because we are not in their position—forced to weigh “bad” against “worse.” I don’t envy them. We might disagree with their decision, but even as we criticize, we should recognize that they made the choice that they believed was best for our institution and community as a whole. Perhaps the most meaningful push we can make is to keep this kind of situation from arising in the future.
I would like to thank Professor Teter for his time. His letter provided much meaningful analysis. Hopefully clarifying these points will help me and others to come to a more accurate assessment of this unfortunate situation.
Ashvin Gandhi PO ’13
1 Employer Information Bulletin 102. The Form I-9 Process in a Nutshell. Oct. 7, 2005. Office of Business Liason, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services. URL: http://www.uscis.gov/files/article/EIB102.pdf