08-Aug-2011
Written by: Business Attorneys, Timothy D. Ronan and Yvonne E. Tagart
The Immigration Reform and Control Act, enacted in 1986 (IRCA), made it illegal for employers to knowingly hire unauthorized workers and requires employers to verify that the employees they hire are eligible to work in the United States. The definition of knowingly includes not only actual knowledge but also constructive knowledge. And that is what makes compliance with the statute a challenge for employers.
IRCA requires employers to verify that employees they hire are eligible to work in the United States by completing the Form I-9. This is where the employer has a challenge of compliance. Most employers comply with the statute from a practical standpoint, meaning an I-9 is generally in each employee file. However, the rules have specific requirements regarding completion of the I-9 and failure to comply can result in significant civil, and sometimes criminal, penalties for employers. While the Bush Administration pursued early morning raids and arrests, generally, the targets were employees. The Obama Administration has changed the focus to a large scale I-9 audit process which focuses on the employers. As an example, the number of audits in 2008 were 503. So far in 2011 there have been 2388 audits. Levied fines have increased from $675,200 to $7,100,000 in 2011 to date. In 2010, Abercrombie & Fitch was fined more than $1,000,000 not for hiring unauthorized employees but for not maintaining the proper records for their employees. In short, the fine was simply related to record-keeping violations.
The lead ICE investigator has reflected on this situation by stating that, “Employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance.”
Employers should review I-9’s carefully, immediately after completion to ensure they do not make obvious mistakes. Section 2 of the I-9 form requires recording acceptable documents and stating the document title, number or expiration date for the acceptable documentation in Section 3 of the I-9 form. While this seems simple, the auditors consistently find errors in compliance. As an example, a common error is a mismatch between the date the employee began work in Section 2 and the date on the employer payroll records.
Even though the E-Verify system is not 100% accurate, the utilization of that service is very helpful to compliance. This can assist employers in confirming the legality of hiring employees. The federal government has not adopted a statute yet requiring E-Verify checking but it is recognized as a valid method of compliance.
Employers hire employees who will contribute to the business and the focus is often not on the “paperwork” aspect of the hiring process. Unfortunately the government approach is a focus on compliance with specific requirements. It is important for employers to adopt a plan to comply with the regulations as the government has now focused on detailed compliance as opposed to actual compliance. Employers must establish a description of the roles and accountability of departments and personnel. It is also necessary to establish time frames in which certain actions should occur, such as responding to Social Security “No Match” letters and resolving discrepancies between payroll and employee identification information. The employer must be careful to comply but not risk being targeted for discrimination violations. The Department of Labor, IRS and EEOC have begun to follow up on the ICE audits. Compliance with IRCA is critical but complying without violating the other regulations related to employment is equally important.
Simply complying with the regulations sounds easy, but the specific requirements can be challenging. Please call us today to go over your company’s compliance.