Tag Archives: Hiring

Pay Attention to I-9 Forms

Forms and Policies, Hiring, Immigration, , , ,

The I-9 form, on which an employer has to certify that every new employee is eligible to legally be employed in the United States, requires significantly more attention than most employers pay to it. Fill it in casually, inattentively or incorrectly, and that form could cost an employer thousands of dollars per employee.

Missing I-9 Information Leads to Penalties

The Trump Administration recently increased the stakes for employers who are careless with completing I-9 forms. On March 16, 2026, ICE determined in a fact sheet (without notice or proposed rulemaking) that it would treat most missing information on the form as a “substantive violation” rather than a “technical violation.”

In government-speak, that means that an employer who does not assure that the form gets filled out completely and correctly each and every time a new employee is hired faces monetary penalties without any opportunity to cure the minor defects first.

For 30 years, technical violations, such as accidentally missing the employee’s date of birth in Section 1, required that the employer correct the error when it was discovered during an ICE audit. The employer had 10 business days to correct the form and then no penalty was assessed.

The omissions that are highlighted on the form pictured here are the errors that were classified as technical violations but are now considered substantive (penalty-worthy). Many of the boxes that I didn’t highlight have been substantive violations for years.

Under ICE’s new approach, these highlighted violations are subject to immediate fines of $288 to $2861 per form. For example, if ICE finds I-9 forms for ten of your employees are missing information that is now considered substantive, your business could be facing $2880 to $28610 in penalties.

Mistakes are Common but Costly

In my 35+ years of full-time employment law practice, I don’t think I’ve ever seen an employer whose I-9 forms on all current employees and former employees who have left in the last year (or in the last three years, depending on length of tenure) are completely correct. Whether the business owner left the process to a busy manager, an untrained HR director, or even an online service, mistakes and omissions are extremely common.

In the past, businesses relied on a good faith defense when errors were discovered during an ICE audit. Essentially the employer in the past could say, “Yes, we made a few errors filling out the forms, but we will get those corrected immediately because our intent was to never hire someone who is ineligible to work in this country.” Employers in the past also relied on ICE’s understanding that the I-9 form has been revised more than 15 times since the Immigration Reform and Control Act was passed in 1987, and every time it gets revised, mistakes are made.

As of March 2026, your good intent, or your unconscious errors, or your delegation to an untrained assistant will not matter. If you fail to complete the I-9 form on a new employee within the required time frame (3 days), if your electronic I-9 system has audit trail problems, if you don’t reverify expired documents promptly or correctly, or you omit any of the information required by the boxes I’ve highlighted for you on the current version of the I-9 form, you can expect trouble when ICE audits your forms.

ICE Audits and Enforcement on the Rise

And ICE is zealously auditing employers in the Texas Panhandle and across the country. In the first half of 2025, ICE sent out Notices of Inspection (audit letters relating to reviewing I-9 forms) to employers at 10 times the rate that it did in 2024. Clearly the approach of the current administration is to target employers using increased fines, criminal penalties and making them into public examples to deter a perceived problem of undocumented workers finding employers willing to look the other way.

Of course, the actual problem ICE is more likely to find is employers who simply made mistakes or didn’t pay enough attention to promptly, completely and correctly filling out I-9 forms each and every time.

Steps Employers Should Take Immediately

What do employers need to do right now to prevent significant fines if ICE comes calling with a Notice of Inspection?

  • Work with an employment attorney now to conduct an internal audit and carefully and legally correct the errors.
  • Train anyone who is going to be in charge of onboarding new employees. It is crucial that the person reviewing the employee legal documents knows how to correctly complete the form and knows what to examine on the identification documents to be able to swear that the employee is eligible to work.
  • If you use an electronic I-9 system for completing and signing the form, a trained HR person still has to physically examine the documents presented by the employee. As an employer, you also need to carefully assess any audit trails created by the electronic system and assure that the system is performing properly. Don’t just take the software company’s word for it. Look at the completed forms yourself and compare the documents that were presented and then copied.  
  • If you are hiring anyone remotely, there are very stringent rules about the I-9 process. You must be enrolled in E-Verify to remotely complete an I-9 on an employee. Alternatively, any employer, whether or not enrolled in E-Verify, may designate an authorized representative (such as an attorney) to meet with and physically examine documents in person on the employer’s behalf. The employer remains responsible for any errors or omissions that the authorized representative makes. And there is a box under “Additional Information” in Section 2 of the I-9 form that must be checked if this remote verification process is used. Failure to check that box is a substantive violation as of March 2026.

Out-of-State Employees Have to be Treated Differently

Compensation, Discrimination, Documentation, Hiring, Personnel Policies, Termination, , , , ,

As a Texas employer, your employees in other states are protected by the laws of the state in which they perform their work, not Texas law. In most cases, those laws give your out-of-state workers more rights and protections than employees in Texas are given.

As a rule of thumb, the state and local laws of the physical location where the employee is working will supersede Texas law. That means that Texas businesses are responsible for complying with the laws of those other states when they employ a worker across the Texas state lines.

Many of my business clients are headquartered in the Texas Panhandle, but they also have operations, offices, clients and therefore, employees, in New Mexico, Oklahoma, Kansas, Colorado or other states. In an attempt to simplify their operations, those multi-state employers often prefer to adopt policies that apply across the board to all employees, regardless of where the employee is located.

But you cannot ignore the employment laws of the state in which your employees reside and perform some work, even if they only work in that state part of the time. While it is impossible to list every different employment law for even just the nearby states, here are just some examples that employers need to be aware of:

Continue reading Out-of-State Employees Have to be Treated Differently →

Get Ready for Immigration Enforcement Spotlight

Documentation, Hiring, Immigration, , , ,

When President-elect Trump takes office next week, he has promised to launch what his aide Stephen Miller called a “shock and awe blitz” of executive orders and actions that will target millions of immigrants and their families. Employers need to be ready to respond to this renewed emphasis on immigration enforcement.

History of Raids on Businesses

Will there be a return to the kinds of raids on businesses that we saw during President Bush’s second term? Time Magazine reported that President-Elect Trump told the magazine in an interview that he wants a return to United States Customs and Immigration Enforcement (“ICE”) raids of businesses. “The strategy, which he also ramped up in his first term, aims to increase the visibility and enforcement of immigration laws in everyday settings, targeting industries that frequently employ unauthorized workers. Trump has suggested that these raids will not only deter unauthorized employment but also lead to significant labor market shifts, benefiting American workers,” Time reported.

For those who don’t remember one of the most infamous ICE enforcement actions during President Bush’s administration, in December 2006, the giant meatpacking plant formerly owned by Swift and now owned by JBS in the Texas Panhandle town of Cactus, was one of the targets of the largest single-site workforce enforcement action in U.S. history. ICE officers in riot gear and armed with assault rifles arrested nearly 300 workers, more than 10% of the population of Cactus. School children were left with no one to pick them up or care for them at home because both parents were arrested in the raid. The community of Cactus was decimated. Seven months later, ICE batted clean up by conducting another, smaller raid on the same plant in Cactus.

The town of Cactus eventually recovered, but the JBS plant is still almost completely staffed by immigrants, some of whom may be at risk if another raid occurs. Many noncitizen workers there are hired to come to the U.S. to work on legal visas, but President Trump has threated even those migrants who are in the country legally, despite that fact that many workers born in the United States don’t seem to want the jobs offered at JBS. If enforcement actions are actively pursued by ICE in Cactus or elsewhere, it will be up to the employer to prove that each of its workers is legally eligible for employment in the United States.

Holding Business Owners and Managers Responsible

After the furor that such raids caused during the Bush administration, President Obama took a different tact. His administration pursued the employers, not the workers. Some  of the 1100 criminal arrests ICE made in 2008 resulted in charges against owners, managers, supervisors or human resources directors who knowingly hired ineligible workers, failed to diligently check employment eligibility or just ignored the requirements.

The owners and managers of the businesses were targeted because it is the employer’s responsibility to certify that each employee is eligible to legally work in the United States. This is done by reviewing the employee’s eligibility documentation (such as passports, work permits, social security cards, driver’s licenses, etc.) within the first three days of employment and properly completing the Form I-9 to show compliance.

How Employers Can Prepare Now

Let’s say that you don’t believe that you employ any ineligible workers. You may still have documentation problems. Just for incorrectly completing the  I-9’s, even if your workers are all actually eligible to work in the United States, you can be fined up to $2789 per worker.

Continue reading Get Ready for Immigration Enforcement Spotlight →

(Out of date) Noncompete Agreements Banned as of September 4

Forms and Policies, Hiring, Noncompete, Termination, Trade Secrets, , ,

Update: Almost immediately after this post went live on August 20, 2024, a federal judge in Texas issued a nationwide injunction striking down the FTC’s noncompete ban. So much for my effots to try to help employers get into compliance before the deadline! So the FTC’s ban on noncompetes is blocked for the foreseeable future. As an employer, you don’t have to send the notices mentioned below. For now, you can still enforce a current noncompetition agreement against a former employee who takes a job with a competitor or sets up a business that competes with yours. However, it would be wise to consider other ways to protect your business’s trade secrets and work product because noncompetes will continue to remain controversial and the subject of a lot of expensive litigation in the future.

As I warned you in June, earlier this year, the Federal Trade Commission issued a rule banning employee noncompete agreements. The noncompete ban goes into effect on Wednesday, September 4, 2024. Despite many pending lawsuits, no nationwide injunction has been entered yet that protects employers from this ban. So now is the time to get into compliance.

What Agreements are Banned?

The noncompete ban prohibits employers from offering or requiring employees to sign any new employment agreement on or after September 4 that restricts the employee from competing with the employer when employment ends. In addition, the FTC rule prohibits employers from enforcing noncompete agreements that are already in effect.

The FTC final rule defines a non-compete clause as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from” seeking or accepting employment or operating a business after the conclusion of the worker’s employment.

You are allowed to require your current employees to be loyal to their employer and not compete while still working for your company. But that duty of loyalty can be explained in a policy in the handbook, rather than in an agreement that requires additional legal consideration (usually monetary) and agreement of both parties.

There is one notable exception to the FTC noncompete ban. As an employer, you cannot enter into a new noncompete with a “senior executive” beginning on September 4, 2024. But existing noncompetes with senior executives can be enforced after the deadline. The FTC’s final rule defines “senior executive” as a worker who (1) earns more than $151,164 per year, and (2) is in a “policy-making position.”

Send Required Notice to Former Employees by September 4

Perhaps the most urgent part of the FTC rule is the required notice regarding the noncompete ban that you as an employer must send out. Before September 4, employers are required to send out a notice to anyone who has previously signed a noncompete that is now unenforceable (former employees) to let them know that the agreement is unenforceable.

Continue reading (Out of date) Noncompete Agreements Banned as of September 4 →

How to Hire and Retain During the “Big Quit”

Attendence, Compensation, Hiring, , , , , ,

Almost daily, my employer clients are telling me about their inability to hire workers to fill job openings in the Texas Panhandle. This local trend reflects a nationwide problem. The Bureau of Labor Statistics just reported last week that 4.3 million people left their jobs in August 2021, the highest “quits rate” since the BLS started tracking the numbers in 2001.  

Industries that were most affected by this high quits rate in August included hotels, bars, restaurants, retail, manufacturing, construction, healthcare and education. The media has dubbed this as the “Great Resignation” or the snappier “Big Quit”.

We knew this was coming even before the BLS released that report on October 12. Surveys by Microsoft and by the Society for Human Resource Management earlier this year both found that 40% of employees say they have or will quit their jobs in 2021. That’s double the number in 2019, just before the pandemic.

There are lots of reasons why employees are participating in the “Big Quit” and employers are having such a challenging time filling open positions. But the reasons are not solely, or even chiefly, related to government handouts. Ending the federal supplement to unemployment in Texas and other states at the end of June 2021 didn’t create any improvement in employers’ ability to hire. In fact, the recent BLS numbers showed that employees walking away from their jobs markedly increased after the unemployment benefits expired.

Reasons for the Big Quit

The reasons for the Great Resignation seem to be related to what employees discovered about themselves and their jobs during the pandemic:

  • More than four million Americans dropped out of the labor force entirely during the pandemic, particularly women and workers over 55 years old. They had reasons ranging from childcare duties, to early retirement, to concerns about contracting COVID. Sixty-eight percent of workers who told SHRM that they were going to quit their jobs in 2021 said that they decided to make a change during the COVID-19 pandemic. Extended time at home has convinced many workers that they are dissatisfied with their current career and would rather transition to being a stay-at-home parent, pursue a new educational opportunity, look for a better job or retire.
  • A huge wave of Baby Boomers retired, many because of unpaid furloughs during the pandemic. But a year later, even more are retiring, reporting that they have reached the point of exhaustion and will be happier if they leave the workplace altogether, even if it means a less healthy retirement income. The estimate is that 10,000 Boomers retire each day in the US, and because the following generations are smaller, finding and retaining replacements for the Boomers is proving difficult and a long-term problem, projected to continue for the next 10-15 years.
  • Restaurant staff, grocery store employees, delivery drivers, heathcare workers, teachers, retail workers and others reached their breaking points. “Throughout the pandemic, essential workers – often in lower paid positions – have borne the brunt of employers’ decisions. Many were working longer hours on smaller staffs, in positions that required interaction with the public with little to no safety measures put in place by the company and, at least in the US, no guarantee of paid sick leave. It quickly burnt workers out,” concluded a BBC report.
  • Low wages are a hugely motivating factor in the Great Resignation. The federal (and Texas) minimum wage hasn’t increased above $7.25 since 2009, even though the consumer prices have. An item that cost $7.25 in 2009 now costs $9.27 in 2021. Employees who make these minimum wage know that they sink further into poverty every year, and they are running away from low paying jobs as fast as possible.
  • The SHRM survey found that 53% of the people leaving their jobs in 2021 did it for better compensation. Employees who are stressed and in low satisfaction jobs with irregular schedules like food service don’t have to perform that work anymore for the low wages that employers were paying before the Big Quit. “Workers’ wages are rising at the fastest pace in years, due largely to structural shifts in labor markets, talent supply challenges and potential inflation.  Research shows 72% of companies are updating pay and benefits programs in 2021 to address multiple challenges”, according to Forbes.  

This kind of massive reorganization of the labor market happens after world wars and economic recessions. The COVID pandemic has apparently created the same type of seismic shift where it is a seller’s market for employees to demand and receive better employment perks in exchange for agreeing to perform the work.

So what should a Texas Panhandle employer do to improve recruiting of employees for all those open positions in 2021?

Continue reading How to Hire and Retain During the “Big Quit” →

Employers Targeted in ICE Raids and Audits

Documentation, Hiring, , , ,

If you think that only illegal aliens need to be concerned about Immigration and Customs Enforcement (“ICE”), then as an employer, you have not been paying attention in 2018, when ICE has clearly put businesses in the crosshairs with compliance audits and enforcement raids.

Take, for example, a raid conducted by ICE in small town Tennessee in April 2018. The Southeastern Provision meatpacking plant reportedly employed at least 104 undocumented immigrants at the time of the surprise raid. The company hired most of these without requiring the employees to complete the required I-9 forms and without making them provide documents showing their identities and authorization to work legally in the United States. To make matters more felonious, these workers were paid in cash each week and not reported on the company’s payroll tax reports.

Last month, the owner of that Southeastern Provision meatpacking plant agreed to a plea bargain in federal court on charges of tax evasion, wire fraud and employing undocumented immigrants. The owner has not been sentenced to prison yet, but he has already agreed to pay at least $1,296,183 to the IRS in restitution.

Similar worksite raids have escalated dramatically under the Trump administration and are happening all over the country. On August 28, a trailer manufacturer located near Paris, Texas, faced one of the largest immigration raids in recent history, when 159 of its approximately 500 employees were arrested by ICE. Because that Texas company, Load Trail, was fined $445,000 four years ago for hiring dozens of undocumented workers, one could reasonably expect the employer to also face jail time and restitution requirements for a pattern and practice of breaking the immigration laws.

How do companies get selected for raids? Continue reading Employers Targeted in ICE Raids and Audits →

What Can I Say? Giving References in Texas

Discrimination, Hiring, Termination, ,

Just when you thought you’d heard the last of Fired Felicia, you get a call from Felicia’s prospective employer, who is diligently checking Felicia’s references. What can you as an employer in Texas legally say about Felicia?

Employment lawyers like me have been telling employers for years to remain close-lipped, giving only dates of employment, job title, and last rate of pay. Safe, but almost deceptive in its reticence. We advise this taciturn approach because of our fear that you will say too much and say something defamatory.

Why do I have that fear? Because in a small city like Amarillo, or really anywhere in West Texas, we spend a lot of time on the other end of the reference spectrum. Instead of reticent, we are gleefully chatty.

Hiring managers around here will pick up the phone, ask for their friend who works at Felicia’s last employer, and find out all about Felicia’s problem pregnancy, Felicia’s attitude problem, or Felicia’s suspected but unconfirmed alcohol dependency. That’s when my head explodes as an employment lawyer who is trying to keep the company out of legal hot water.

The rules of references must be one of the most misunderstood areas of human resources. But in Texas, it really shouldn’t be that hard. Here are some simple guidelines: Continue reading What Can I Say? Giving References in Texas →

No Peeking! Social Media in Hiring

Discrimination, Hiring, Privacy, , ,

Can the company recruiter review an applicant’s personal social media accounts before making a hiring decision? Yes, in Texas, an employer may look at any public postings, but there are enough legal risks that I would discourage you as an employer from peeking.

Why shouldn’t an employer take advantage of the wealth of information that may be available on an applicant’s Facebook page, even if the employer hasn’t “friended” the applicant? Because much of the information you could discover on an applicant’s social media is not job-related, and therefore becomes the basis for a discrimination claim.

Because many people are careless about the privacy controls on their social media profiles, you may find out that your applicant has a disability that was not obvious during the interview, but comes more clearly into view when you read the “I’m praying for you” messages on the applicant’s Facebook page. Are you going to violate the Americans with Disabilities Act by failing to hire the applicant now that you know this information?

You may discover that the applicant is pregnant when you see that she announced the exciting news on Twitter. “But I want to know if she is pregnant, so I don’t lose her for twelve weeks next year,” you will tell me.

In response, I’ll refer you to the recent case of United States Equal Employment Opportunity Commission, et al. v. Brown & Brown of Florida, Inc., in which an applicant was offered a $13.50 per hour job with an insurance brokerage that she joyfully accepted. She told her old employer she was leaving. She followed up with the new employer and asked about the company’s maternity policy, revealing that she was pregnant. Her job offer was revoked by the brokerage that same afternoon. That revocation decision cost the brokerage $100,000 because it violated the Pregnancy Discrimination Act.

So, do you really want to know what you may find out on social media? Three-quarters of all Human Resources professionals surveyed in 2013 by the Society for Human Resource Management said that they do not screen personal social media accounts because they fear what they will find. I advise my employer clients to exercise the same restraint.

But if you insist on peeking:

  • Screen all or none. Your electronic screening history will be subpoenaed in any discrimination claim and it will be apparent if you only screened women, for example, to see if they have young kids that might affect their attendance.
  • Don’t ask for the applicant’s passwords to their social media accounts. Many states have passed laws banning this practice and any jury that hears that you made that request will hate your guts.
  • Getting a third party to screen for you requires that you follow all of the complex requirements of the Fair Credit Reporting Act (prescreening notice, summary of rights, pre-adverse action notice, time to correct the record, post-adverse action notice).
  • Be careful what action you take once you have screened. If you determine that the applicant is transgender, Muslim, disabled or pregnant based on her FB page, are you going to risk a discrimination lawsuit by not hiring her? This is when you need to get your employment lawyer involved.
  • What if you see posts or pictures that cause you to believe that an applicant could be a threat to other employees? If you hire him anyway, you can be sued for negligent hiring if he ever becomes violent at work.
  • If you see a post reflecting union activity or protected concerted activities (discussing wages or terms and conditions of employment, such as complaining with a coworker at a former job), any adverse action you take involving that applicant could violate the National Labor Relations Act.

I don’t include LinkedIn when I am advising employers to stay away from an applicant’s social media pages. LinkedIn and similar industry sites are commonly used for business and not social purposes. Applicants are generally much more discrete about what they post on their LinkedIn pages.

In addition, posting company job openings on social media and using a service like LinkedIn to attract passive and active job applicants is common now and doesn’t run the same risks as peeking at an applicant’s personal social media pages.

Employers Must Use Revised I-9 Form Beginning September 18

Documentation, Hiring, , , ,

The very important I-9 form, which verifies a new employee’s identity and eligibility to work in the United States, has been revised again. Employers must start using the revised form on September 18, 2017.

The revision, marked “07/17/17 N” and carrying an expiration date of 08/31/19, has to be completed only by new hires. You do not have to go back and get all of your current employees to recomplete an I-9 just because the form changed after their hire date.

Employers must complete an I-9 form on each new employee within 3 days of hiring. This process started in 1986 as part of the Immigration Reform and Control Act, which prohibits employers from taking on a new employee without verifying the employee’s identification and eligibility to work legally in the United States.

The verification is done by reviewing the employee’s identification and employment eligibility documents, such as a passport, a permanent resident card, or a driver’s license and social security card, and completing the I-9 form. There is a very helpful employer’s guide available online that shows you what a valid document is supposed to look like. Doing your due diligence requires that you consult that guide each time you look at a new employee’s documents.

Because of the views of the current administration, employers can expect an increase in enforcement of immigration laws, including more frequent ICE audits of your I-9 compliance. There are expensive penalties if you as an employer cannot produce accurately completed I-9 forms for each of your current and former employees.

The minimum fine is $216 per error on an I-9 and the maximum is $2,156 per error (including current employees and former employees) for each paperwork violation. That means that a single I-9 form which has multiple errors could cause the employer to be responsible for multiple penalties per form. If ICE determines that the employer has failed to accurately complete I-9s on at least 50% of its employees, the maximum fine of $2,156 will be levied on the employer for each form.

You must keep an I-9 form on every active employee as long as the employee works for you. For a terminated employee, you must be able to produce an I-9 for three years after the hire date or one year after termination, whichever is later. To make it easier to remember, most employers wait to purge I-9 forms until three years after an employee’s termination.

Typically, when ICE appears for an I-9 audit, they will require that you produce I-9 forms for each current employee and any employee terminated in the last three years. You are given 72-hours’ notice to pull all of these forms together, which is why many employers store the I-9 forms together rather than in each employee’s individual file.

Key to Good Hiring: Good Interviews

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In these times of low unemployment, don’t you as an employer want to know the key to good hiring? After all, a bad hire means that recruiting dollars are wasted, projects remain incomplete and you may even lose customers or good employees who are tired of dealing with the subpar employee.

In an ideal workplace, each new hire performs the job duties well, fits into the culture, contributes new ideas and energy, forms close professional relationships with coworkers and increases the efficiency and effectiveness of the organization.

But how do you achieve that ideal? You have to know the key–good hiring requires good interviewing.

Okay, that should have been obvious. But in my 25+ years of experience in the world of employment, I’ve seen more poor interviews than good ones. See if any of these questions sound familiar:

  • How did you hear about this job?
  • Tell me about yourself.
  • How do you know so and so?
  • Do you know how to use a computer?
  • Do you like to work in a fast-paced (or casual, or family-oriented, etc.) environment?
  • Insert any other close-ended question that provides zero information here.

Open-ended questions that are too general like “tell me about yourself” will only inform you of whatever the applicant wants you to know. Close-ended questions that require just a “yes” or “no” answer provide you with no useful information.

We often treat interviews like we are trying to make small talk at a cocktail party. And we often have similar awkward results. So how do you interview well? Continue reading Key to Good Hiring: Good Interviews →