THE BLOG
10/05/2010 06:12 pm ET | Updated May 25, 2011

Why Didn't eMeg Sign Nicky's Work Documents?

Amid the still unanswered questions about Meg Whitman and l'affaire Nicky is why neither eMeg nor her husband, Griff Harsh, ever signed the employment eligibility document for their former housekeeper, as required by law.

Much attention has focused since the story broke on why Whitman-Harsh failed to pursue questions about the immigration status of their former maid, Nicky Diaz, after receiving a 2003 letter from the Social Security Administration noting a discrepancy with her social security number.

However, their handling of the legal form they were required to complete at the time they first hired Diaz, three years earlier, suggests even greater negligence in their exercise of due diligence, or lack of same, in employing her.

Under the terms of the Immigration Reform and Control Act of 1986, employers are required to complete and retain an I-9, formally known as an Employment Eligibility Verification Form, in order to "verify the identity and employment authorization of each person" they hire, according to the Department of Homeland Security's U.S. Citizenship and Immigration Services bureau.

Part one of the form is to be filled out by the employee, and includes her name and address, plus signature attesting to her citizenship or legal immigration status.

Part two is to be filled out by the employer, who is required to record the title, number, issuing authority and expiration date of several identification documents provided by the employee, after personally examining them to establish to their satisfaction that the person is eligible to work in the U.S.

The employer also is required to record the date the employee began work and to sign, under penalty of perjury, a statement "that the above-listed documents appear to be genuine... and that, to the best of my knowledge the employee is authorized to work in the United States."

When the Whitman campaign last week released a photocopy of the I-9 form for Diaz, the employee section was completely filled out - including Diaz's signature falsely attesting to her legal eligibility to work. However, the employer section was not: details of the driver's license presented by Diaz were recorded (in whose handwriting is unclear) but those of the Social Security card she was using were not. Also missing was the start date for her employment and a signature attesting that either Ms. Whitman or Dr. Harsh, a neurosurgeon, had examined the documents and believed them to be in order.

Gregory Siskind, founder of Siskind-Susser, one of the largest immigration law firms in the country, examined the documents at the request of Talking Points Memo:

Looking at this, it is very unusual to see the documents that nothing is signed, there's no dating on it -- so there's no indication that anyone actually looked at the documents,. That's what the whole point is of the certification, that an employer is supposed to say I looked at these documents, they appear to be genuine.

Siskind elaborated on the matter on his Immigration Law and Policy blog.

Because the form is not signed or dated by the employer, it is far from clear that the employer even examined the documents presented. Keep in mind that Abercrombie & Fitch got a $1 million fine this week for violations of just this sort.

Incidentally, even if Whitman's nanny agency handled the I-9, that doesn't let her off the hook for violations in completing the form. The nanny agency was not the employer - just the agent and so Whitman and her husband are still liable for employer violations. There appear to be paperwork violations. There could also be liability for "knowingly" employing someone illegally if the facts show that despite the presentation of a bogus social security card, the employer had independent knowledge or "constructive" knowledge that a worker was out of status. Certainly the fact that the I-9 was never signed by the employer means that the defense of saying that you looked at the documents presented and they appeared valid is not going to be readily available.

At her press conference last week, eMeg was asked why she hadn't signed the Diaz documents. She replied, a) "I don't know whether we signed them or not" and b) that she didn't know "whether we were required to or not."

In that regard, we recommend the profile by our old friend Howard Mintz, who offers a fairer and fuller portrait of Allred from the seasoned perspective of a long-time legal eagle reporter.

The 69-year-old Allred's tactics may make legal purists cringe, and she's been called every name in the book -- from "disgusting" by the wife of actor Rob Lowe, whom she sued on behalf of a former nanny claiming sexual harassment, to "shrill feminist attorney" in a depiction on "The Simpsons."

But, as Whitman has discovered, Allred is a formidable foe. And despite the fact that her cases often make her clients instant celebrities of their own and force her targets to write fat checks to settle, she does tend to represent the underdog, such as the aggrieved mistress, the harassed woman in the workplace or, in this week's case, an illegal immigrant housekeeper named Nicandra Diaz Santillan.

"You may love her, you may hate her, but she gets your attention," said Laurie Levenson, a Loyola University law professor. "She stirs the pot."

More of today's post at www.calbuzz.com

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