Labor law compliance

Some employers rely a great deal on
foreign labor to run their businesses.
But proper compliance with immigration laws is tantamount to ensuring they’re
eligible to work and avoiding costly fines.

That compliance is even more important
today since the government has increased
enforcement efforts, says Hannah Meils,
associate with Sommer Barnard PC in the
Labor & Employment Law Practice Group.

Smart Business spoke with Meils about
what a company needs to do to ensure its
employees are eligible to work and pass a
potential audit by the government.

What does the I-9 process require of employers?

The Immigration Reform and Control Act
of 1986 made employers responsible for
checking the identity of their employees
and the eligibility of those individuals to
work within the United States. The Act
requires employers of all sizes to confirm
employee identity and eligibility to work
and to then complete the I-9 paperwork
obligations within three business days of
an employee’s employment start date.

How have the government’s I-9 compliance
enforcement efforts changed over the years?

The discussions in Congress earlier this
summer about potential immigration
reform made clear that many believe that
enforcement of current immigration laws
has been lacking. The government recognizes that this lack of enforcement has contributed to the large number of illegal
aliens presently residing in this country. In
response, the government has begun to
expend greater efforts to enforce existing
laws against not only illegal aliens but also
the employers that choose to employ them.

In April 2006, Immigration and Custom
Enforcement (ICE), the government agency
charged with enforcing immigration laws,
began a new initiative to target employers
who use unauthorized workers. ICE’s goal is
to enforce the law and punish those employers who have violated it. The government is
now using criminal investigation techniques
to pursue violators far more widely. For example, ICE has conducted raids at
numerous employment sites and has prosecuted the employer supervisors at those
sites for criminal conspiracy and harboring
illegal aliens. In addition to the wrath of the
government, these employers have suffered
significant bad publicity. In late 2005, Wal-Mart was fined $11 million when it was discovered that its subcontractor supplying
janitorial employees had not been verifying
employee employment eligibility. Wal-Mart’s
story has become the cautionary tale
demonstrating why proper employer procedures and enforcement of those procedures
is imperative.

What are the penalties for failing to comply
with the I-9 requirements?

In addition to criminal investigation techniques, the government also conducts
audits of employer I-9 documentation to
ensure employer compliance with the verification obligations. While this is clearly
less serious than a raid of an employer
worksite and subsequent criminal charges,
failure to properly comply with I-9 obligations can still result in significant civil
penalties for employers.

Failure to comply with I-9 paperwork
requirements can result in penalties ranging from $110 to $1,100 per offense. When
an employer has knowingly — the government uses a broad definition of ‘knowingly’
— employed an unauthorized alien, penalties may range from $275 to $2,200 per
unauthorized alien for the first offense, and
steadily increase for any subsequent
offense. Employers should keep in mind
that failure to properly comply with I-9
obligations could result in the inadvertent
employment of unauthorized aliens. If the
government establishes that this inadvertent employment was the consequence of
the employer’s careless I-9 compliance, it
may find that the employer has ‘knowingly’
employed the unauthorized alien, which
will result in stiff penalties.

Additional penalties include denial of federal contacts and potential criminal penalties for a pattern or practice of knowingly
employing unauthorized aliens. Further,
criminal penalties and charges can be
assessed against both employers and individuals working for the employers in a
capacity that has oversight of the I-9
process who have ‘knowingly’ engaged in
improper conduct.

What are the biggest mistakes employers make
with respect to their compliance efforts?

The biggest mistake an employer can
make is to either ignore its obligations or to
haphazardly implement compliance procedures. Employers should designate one individual to undertake the I-9 compliance
process and ensure that the selected individual is properly trained in compliance procedures.

Another big mistake some employers
make is to not uniformly comply with their
verification obligations. For example, an
employer may strictly enforce verification
procedures with its Hispanic employees,
but then halfheartedly verify the identity
and work eligibility of its remaining work
force. This approach clearly violates the
Immigration Reform and Control Act’s
anti-discrimination provisions.

HANNAH MEILS is an associate with Sommer Barnard PC in
the Labor & Employment Law Practice Group. Reach her at (317)
713-3412 or [email protected].

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