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@example.com.