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Illegal Aliens on the Job: Working Through the Maze of Federal & State Workplace Regulations
Insights for staying compliant with federal & state workplace regulations, including tips for using E-Verify, the electronic verification software offered by the government.
By DeAnna Stephens Baker and Chaille Brindley
Date Posted: 7/1/2010
Due to political controversy over a new law in Arizona, the issue of immigration reform has resurfaced on the national agenda. It looks like a long shot for Congress to really address the issue this year. That leaves businesses, including pallet and lumber companies, trying to figure out what the best strategy is to be compliant with federal workplace laws while avoiding the pitfalls of discriminatory practices.
Your compliance program must start with completing Form I-9 for all new hires. This is the backbone of the authorization process that requires employers to check for work authorization documents as well as keep proper records. Like it or not, employers are the defacto policing force against illegal aliens entering the U.S. workforce.
Form I-9 Basics
Employers are required to complete Form I-9 for each new hire within three business days of the first day of work. I-9s are not necessary for independent contractors. Employers are responsible for reviewing and ensuring that employees fully and properly complete Section I of Form I-9.
Providing a Social Security number on Form I-9 is voluntary for all employees unless you are an employer participating in the E-Verify Program, which requires an employee’s Social Security number for employment eligibility verification. You may not, however, ask an employee to provide you a specific document with his or her Social Security number on it. To do so may constitute unlawful discrimination.
If the employee uses a preparer or translator to fill out the form, that person must certify that he or she assisted the employee by completing this signature block. To finish Section II of Form I-9, an employee must present to you an original document or documents that establish identity and employment authorization within three business days of the date employment begins. Some documents establish both identity and employment authorization. See the list on the Form I-9 to ensure proper documents are reviewed.
Upon rehiring an employee, employers must ensure that he or she is still authorized to work. You may do this by completing a new Form I-9 or you may re-verify or update the original form by completing Section III as long as certain restrictions are covered.
Employers must retain completed Forms I-9 for all employees for three years after the date they hire an employee, or one year after the date employment is terminated, whichever is later. These forms can be retained in paper, microfilm, microfiche, or electronically as long as the information can be obtained when required by government officials. Some companies choose to outsource storage of I-9s to a third party service. This is allowed although the employer is still responsible for the records. Once you have securely stored Form I-9 in electronic format, you may destroy the original paper Form I-9. If you complete Forms I-9 electronically using an electronic signature, your system for capturing electronic signatures must allow signatories to acknowledge that they read the attestation and attach the electronic signature to an electronically completed Form I-9.
Possibly most importantly, use the correct form. Many employers are unaware that the federal government updated Form I-9 last year, making the old form obsolete. The form that should currently be used has a revision date of February 2, 2009 printed on the lower right-hand corner.
One of the problems with the current system is that employers can be trapped between the prospects of government fines for hiring illegal workers or discrimination lawsuits if a company is seen as too strict or exhibits discriminatory treatment of new hires in some way. There are some smart steps that a company can take to shield itself from either government fines or discrimination lawsuits.
The most important thing is for an employer to develop policies that are applied equally across its workforce. Staff responsible for evaluating, processing and storing Form I-9 should be properly trained to ensure that everything is done properly and according to company standards.
One common source of discrimination is document abuse. This occurs when employers treat individuals differently on the basis of national origin or citizenship status in Form I-9 processing. A typical example involves requesting specific documents or rejecting documents that reasonably appear to be genuine and belong to the employee presenting them.
Don’t request to see employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen. Form I-9 may not be used to screen job applicants. The law requires Form I-9 to be completed only after the person has been offered and accepted the job.
Another common problem occurs if an employer refuses to accept a document or hire an individual because a document has a future expiration date. This may lead to a discrimination charge. In addition, employers cannot specify which documents they will accept for verification. Employees may choose which documents they wish to present from the lists of acceptable documents on Form I-9. Employers must accept any of these documents which upon examination reasonably looks valid and like it belongs to that person.
Most important in avoiding discrimination charges is to apply the same practices uniformly to all employees. Making exceptions for those who look or sound “American” that would not be made for someone that looks or sounds foreign, or requiring more of someone who looks or sounds foreign than someone who does not, is a quick way to be charged with discrimination.
Both Form I-9 and the U.S. Citizenship and Immigration Services’ (USCIS) Handbook for Employers which has complete instructions on completing Form I-9 can be downloaded at www.uscis.gov or obtained by calling 800/870-3676.
An optional employment verification process linked closely to Form I-9 is E-Verify, an internet-based employment eligibility verification program. It is a free system administered by the USCIS that allows employers to electronically verify the employment eligibility of new hires using information from Form I-9 by comparing it against over 500 million records in the Social Security Administration (SSA) and Department of Homeland Security (DHS) immigration databases. Using E-Verify does not require any extra software – only internet access. Most results are displayed within seconds, providing almost instant confirmation of eligibility, or of mismatches or errors in government records.
E-Verify can be a vital part of a company’s goal of ensuring a legal workforce. Though a Form I-9 collects information on employees, it does not allow employers to verify that the information provided by employees is valid or that the documents presented are genuine. E-Verify gives employers a way to protect themselves against those who try to cheat the system. E-Verify works seamlessly with the Form I-9 process to confirm employment eligibility.
For most employers, the use of E-Verify is voluntary and limited to determining the employment eligibility of new hires only. However, all federal contractors are now required to participate in E-Verify and states seem to be phasing E-Verify in by starting with state agencies and contractors. For companies interested in government contracts, being E-Verify compliant could be a helpful advantage when competing for federal, or even state, government contracts.
Employers should realize that when a company voluntarily registers for E-Verify, it must immediately begin using it for all new hires. Companies would be wise to consider preparing to use E-Verify before actually registering to ensure a smoother transition to the new procedure when the time comes. This can be done by choosing the human resources personnel who will be responsibility for the E-Verify process and training them beforehand. The E-Verify User Manual for Employers is available online at www.uscis.org. Following registration, there are also interactive training tutorials available online.
In addition, know how using E-Verify will affect your Form I-9 process, as there is a slight change in what information is required. The main differences are that when a company uses E-Verify the employee must provide a Social Security number and any documents presented from List B on the Form I-9 must contain a photo. Personnel responsible for the Form I-9 process must be trained in the new requirements.
With the way that E-Verify integrates with the Form I-9, there are some shortcuts available as well. For employers that use electronic Form I-9s, there are private companies that offer systems that automatically generate E-Verify queries from the electronic I-9s. This would, of course, incur fees from the private companies, but could save companies valuable time.
While Arizona’s immigration law has received attention nationwide, many other bills dealing with immigration and refugees have quietly been introduced at state houses across the country. Over 1,000 bills and resolutions related to immigrants and refugees were introduced in 45 state legislatures during the first quarter of 2010. About 200 of those have already been passed or adopted and many more await governors’ signatures.
Already, 13 states require the use of E-Verify to some degree and many states have bills in various states of passage. One of which, Utah, just added all private employers with 15 or more employees to use the program starting July 1, 2010. Virginia has also passed a law recently requiring state agencies to verify the employment eligibility of new hires using a status verification system, but it will not go into effect until December 1, 2012.
Two bills that would require state contractors and construction employers to use E-Verify were passed by the Pennsylvania House in the beginning of June. Indiana’s Senate also recently passed an E-Verify bill requiring state and local governments, government contractors and some private employers to use E-Verify. These all still require passage in the second house. Thus far, Illinois stands alone against the wave of states requiring E-Verify, as it actually prohibits companies in the state from using an employment verification system until accuracy and timeliness issues have been resolved.
With the number of active bills related to immigration and employment eligibility, companies should stay abreast of what is happening in both their state and locality. For companies interested in federal or even state contracts, or for those that are likely to see E-Verify become mandatory, steps should be taken now to prepare for the change. Above all, companies should ensure that they comply with the most basic of regulations and that their Form I-9 processes are enforced at all times, and uniformly to all new hires.