The Federal Government has stepped up enforcement and prosecution of EMPLOYERS who hire undocumented workers. Felony criminal prosecution and fines are being imposed for employers who cannot show they have taken the steps required in the hiring process.
If as an employer you have a perspective employee fill out the Form I-9 (U.S. Department of Homeland Security Employment Eligibility Verification form), and you examine the required documents, you will not be fined or prosecuted, even if it turns out that the documents were falsified and the employee turns out to be an undocumented alien. Of course, if you knew the worker was undocumented, you can still be fined or jailed.
Therefore, it is strongly recommended that you follow the procedures that are outlined below.
1. Have the employee complete Section One of the I-9 Form. He/she must sign the form. If the form is completed by someone other than the employee, that person must also sign;
2. You must complete and sign Section Two of the I-9 Form. To do so, you must examine one document from List A, OR one from List B AND one from List C;
3. You must accept any document(s) from the List of Acceptable Documents presented by the individual which reasonably appear on their face to be genuine and to relate to the person presenting them. You may not specify which document(s) an employee must present;
4. You must retain the I-9 Form for three years after the date the person begins work or one year after the person's employment is terminated, whichever is later; and
5. Upon request, provide Forms I-9 to authorized officers of the Department of Homeland Security, the U.S. Department of Labor, or the Office of Special Counsel for Immigration Related Unfair Employment Practices for inspection. Another area of concern is "document abuse." This is the term used to describe unlawful practices by the employer related to verifying the employment eligibility of employees and discriminatory use of the I-9 form. An employer with four or more employees may be charged with unlawful discrimination for any of the following reasons - these practices should be avoided:
1. Improperly requesting that employees produce more documents than are required by the Form I-9.
2. Improperly requesting that employees produce a particular document such as a "green card," to establish identity or work eligibility.
3. Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them.
4. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees that look or sound "foreign" to produce particular documents that the employer does not require other employees to produce.
Here are a few more tips that may be helpful
• Be certain you have complete I-9 forms for all new hires, including U.S. Citizens.
• Make sure that all staff that process new
hires are trained to
the I-9 process and are trained to properly
complete the I-9 form. Periodically interview staff to make sure they
are properly processing new hires.
Incomplete or improperly completed I-9 forms will result in exposure to liability!
• Complete the forms at the same point in the employment process for all employees - after you have made the decision to hire the person.
• The law does not require you to photocopy documents. However, if you wish to make photocopies, you must do so for all employees, and you should retain each photocopy with the Form I-9.
• Periodically review your I-9 procedures, especially prior to the employment of seasonal workers. Conduct occasional "spot checks" to ensure the procedures are being followed and the forms are being filled out correctly.
• Make sure your system is programmed to "flag" I-9's 90 days before the expiration date of any work authorization document!
• Periodically review your record retention practices. Be certain you keep I-9 forms on file for three years after the date of hire or for one year after termination of employment, whichever date is later.
Although following these suggestions does not guarantee that you will be protected against criminal or civil charges, it does minimize the possibility and will help to give you one less thing to worry about. If you would like more information on this subject, please contact me at the California Thoroughbred Trainers office.