Tag Archives: I-9 Form

Get Ready for Immigration Enforcement Spotlight

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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 →

When an Employee’s Social Security Number is Incorrect (or Fake)

Discrimination, Documentation, Hiring, Immigration,

In 2019, the Social Security Administration (“SSA”) is again starting to send “No Match” letters after a seven-year hiatus to employers who reported payroll taxes for an employee under an incorrect (or fake) Social Security number.

What are the legal do’s and don’ts when the company receives an “Employer Correction Notice” (more commonly known as a No Match letter) from the SSA or otherwise finds out that an employee’s Social Security number isn’t accurate?

  1. Don’t overreact. There are a number of reasons that an employee’s Social Security number may have been reported incorrectly, the most common being a transposition of numbers in the company’s system or a name change. Your responsibility as an employer is to carefully address this matter so you don’t violate any discrimination laws, but you also protect the company now that you know there is a problem.
  2. Don’t ignore. You have to act in response to a No Match letter or other knowledge that a Social Security number is invalid. But what actions you need to take should be discussed with your employment lawyer, who you should call immediately upon receipt of the No Match letter.
  3. Don’t fire anybody (yet). The letter itself will say, “You should not use this letter to take any adverse action against an employee, such as laying off, suspending, firing or discriminating against that individual just because his or her name or SSN does not match our records.”
  4. Don’t confuse the Social Security Administration with Immigration and Customs Enforcement (ICE). No match letters come from SSA and must be addressed through the SSA system. There may be a connection between the incorrect Social Security number and the employee’s eligibility to work in the United States, but you are a long way from making that determination yet when you have just received the No Match letter. On the other hand, ICE may regard a failure on the part of the company to act correctly in response to a No Match letter as an indication of guilt in employing undocumented workers, which is why having an employment lawyer walk you through this process is essential.
  5. Do check your records. Make sure the mistake is not on your end—check that you correctly reported the name and Social Security number that your employee provided to you. If the mistake was yours, notify SSA of the correction.
  6. Do ask the employee to address the problem. After you confirm that the mistake is not on your end, you need to notify the employee in writing that he/she has the responsibility to clear up any discrepancy with SSA by a reasonable deadline (at least 90 days).  Advise your employee that failure to act immediately, to provide the corrected documents in a reasonable time or to provide a good-faith explanation of the problem could later be grounds for termination.
  7. Don’t make an employment eligibility decision yet. There is a dangerous tendency for Texas employers to suspect a Hispanic employee with an incorrect Social Security number might be ineligible to legally work in the United States. This bias could quickly get you sued for discrimination. Give every employee with a mistaken Social Security number a chance to correct that mistake through the SSA procedures. Don’t require an employee to fill out a new I-9 employment eligibility form until the SSA procedure is complete and then only if the employee used the incorrect Social Security number on the first I-9 that the employee filled out.
  8. Don’t turn a blind eye to an affirmative statement of ineligibility by the employee. On the other hand, employees will sometimes tell you when confronted with Social Security number mistake that the employee doesn’t have a Social Security number. Your response should still be, “Talk to SSA and get this corrected.” But if the employee actually says, “I’m not in the United States legally and can’t get a Social Security number because I’m not eligible to work here,” you have to take that admission of ineligibility to work seriously. There is a requirement that employers must terminate any employee immediately upon receiving actual knowledge that the employee is not authorized to work, such as when the employee admits to having submitted false documents for I-9 purposes or to entering the country illegally and never applying for a work permit. This is a red flag warning to call your employment attorney.
  9. Do consider if you need to adopt verification procedures at time of hiring. The SSA provides a verification service that you can use to check Social Security numbers for payroll purposes only (not I-9 purposes) at the time of hiring. Many background checking services will also offer this as part of their criminal background check. But if you are going to start verifying Social Security numbers with new hires, you must be consistent and verify every single employee to whom you make a job offer or your inconsistency can be considered discrimination.
  10. Don’t mistake SSA verification for E-Verify. E-Verify is the federal database for verifying employment eligibility for I-9 purposes. This is where you can find out if your employee really is legal to work in the United States. However, at the present time, there are so many red-tape and technical problems with E-Verify, which has been known to mistakenly block eligible workers, that I do not recommend that employers enroll in that system if you don’t have to (enrollment is mandatory for some employers, such as federal contractors).

“Hire American” Doesn’t Justify Employing Only Citizens

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As an employer, you have to verify the work eligibility of every employee, and that frustrating process might make you consider hiring only U.S. citizens. Please reconsider.

The form for verification, the I-9 form, is confusing and some of the documents you are presented may not look familiar to you—permanent residence cards, foreign passports, employment authorization documents, tribal documents. So, you may find completion of the required I-9 form stressful, especially since you have to swear under oath on the I-9 itself that the documents the employee presented and you examined appear to be genuine and the person is authorized to work in the U.S. to the best of your knowledge.

It is tempting to consider just making a blanket rule that you will only hire U.S. citizens. Then, you would only need to look at a driver’s license and social security card. Additionally, President Trump signed an executive order last year requiring “Buy American, Hire American” (notwithstanding the fact that he uses foreign guest workers as servers, housekeepers and cooks at his properties like Mar-A-Lago). So, wouldn’t you just be doing your patriotic duty by hiring only American-born workers at your company?

No.

There are both longstanding legal and historical reasons that “Hire American” should only be treated as a slogan and not an employment policy.

The same Immigration Reform and Control Act (“IRCA”) that introduced the I-9 form to American employers in 1986 also codified that employers with four or more employees are prohibited from discriminating on the basis of citizenship status, which occurs when adverse employment decisions are made based upon an individual’s real or perceived citizenship in the U.S. (or lack of citizenship) or an applicant’s legal immigration status.

The IRCA antidiscrimination provisions also prohibit small employers (e.g., those with four to fourteen employees) from committing national origin discrimination against any U.S. citizen or individual with employment authorization. Employers with 15 or more workers were already prohibited from considering national origin in employment decisions by Title VII of the Civil Rights Act of 1964. Any employer who only hires applicants born in the United States discriminates against all other national origins.

Therefore, any employer who takes into account an applicant’s country of birth or citizenship status when making hiring decisions violates federal law. Your only interest in someone’s citizenship or immigration status should be finding out within the first three days of work whether your new employee is eligible to work in the United States, no matter where that employee is from or whether he or she is a visa-holder, born elsewhere but now a green-card holder, or a citizen, naturalized or native-born.

But it isn’t only for legal reasons that you should never discriminate against legal immigrants in your workplace. Hiring legal immigrants also strengthens our democracy.

It is  important to understand the historical context of denying a legal immigrant the chance to work in America, which is supposed to be the Land of Opportunity. Our history is full of times when we excluded groups of immigrants in ways that now seems nonsensical.

For example, in the 1840’s and 1850’s, Irish immigrants fleeing a deathly famine and British oppression arrived on the East Coast in “coffin ships” (so called because almost 25% of the passengers who started the journey died during the passage). All of the lucky ones who survived to reach the United States were hungry, many were unskilled (often farmers who were initially unsuited to work in urban areas), and almost every one of them was Catholic. This was at a time when some Protestant conspiracy theorists fanned the flames of fear that the pope and his army would land in the United States, overthrow the government, establish a new Vatican in Cincinnati (of all places), and impose the Catholic canon as the law of the land.

(Forgive me if you already know all of this, but it appears to me that, 170 years later, the mistakes of our history are being forgotten and, therefore, will be inevitably repeated).

In cities like Boston, it was hard to assimilate such large numbers of immigrants and some employers decided it was easier just to exclude Irish workers from employment completely. “No Irish Need Apply” was a sign common in Boston storefronts at that time.

National origin and religious prejudice ran high across the country, and bigoted groups formed, such as the Know-Nothing party who believed that Protestantism defined American values and Irish Catholics had no place in America (regardless of the First Amendment’s protection of freedom of religion).

Fortunately, America also had its better angels. Abraham Lincoln was among the many Americans disturbed at the rise of this bigotry, as he explained in an 1855 letter to a friend: Continue reading “Hire American” Doesn’t Justify Employing Only Citizens →

2017 New Year’s Resolutions for Employers

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At the beginning of each year, I encourage my business clients to make some New Year’s resolutions to achieve better compliance with the myriad employment laws. Based on what many of my clients are telling me and what the courts and enforcement agencies have on their agendas, here are the employment matters that you could improve in 2017:

  • Immigration compliance: President-Elect Trump has promised strong enforcement of the immigration laws. Many of those enforcement efforts will affect employers, such as mandatory use of the E-Verify system to double-check the legal status of every new hire. Even before that requirement is put in to place, resolve to correctly complete the mandatory new I-9 form for every new hire. The best way to make sure the I-9 is correctly completed: consult the government-published Employer’s Guide to the I-9, particularly the color pictures that show you exactly what a valid permanent resident card, for example, looks like. Also, be prepared that some of your employees may lose their work eligibility under the new administration, including young people (known as the Dreamers) who became eligible under the Deferred Action for Childhood Arrivals (DACA) program in 2012.
  • Market rate on salaries: Texas’ unemployment rate was sitting at 4.6% at the end of November 2016. Amarillo’s rate was 3.0%. Economists consider 3% to be full employment, meaning you as an employer maybe finding it difficult to attract and keep the talent that you need. I am always surprised therefore when my clients don’t keep up with the market data on salaries. Resolve in 2016 to tap into the data available on the Bureau of Labor Statistics for your industry and your location to really analyze whether your salaries are sufficient. Employees will also be looking at Salary.com and Payscale.com, so you need to do the same.
  • Improve your PTO offering: I am amazed when I am drafting or revising my client’s employment handbooks how little paid time off many local employers offer. Many don’t give an employee any vacation, sick leave, personal days or other paid time off during the first year and then rarely allow more than five days per year after that. This will not attract top talent or create long-term loyal employees, I promise you. Particularly if you are hiring millennials or need an educated workforce, you need to up your game on PTO. My 22-year-old son was hired in 2015 by a consulting firm in Washington, D.C., right out of college (with a degree in economics and a master’s degree in business analytics) and offered three weeks of PTO that started accruing immediately. After one promotion, employees at his company get four weeks of PTO. I’m not arguing that every job merits that much PTO, but resolve in 2017 to at least consider that two weeks per year should be the minimum to improve your hiring, increase your retention, rejuvenate your employees every year and allow your employees to deal with the inevitable ups and downs of life. As an employment lawyer, I know that most employee lawsuits arise after the worker leaves your employ. Keeping your staff reasonably happy and loyal by providing better PTO will provide you with other benefits too, but I like it because you will spend less time with me in court and instead we can just have lunch and talk about more pleasant topics.
  • Health Reimbursement Accounts: None of us know what the new administration will create to replace the Affordable Care Act, so I can’t give you much advice yet about your group health insurance offerings. However, employers with less than 50 employees who don’t offer group health insurance should resolve to consider using Health Reimbursement Accounts in 2017 because of the bipartisan 21st Century Cures Act that sailed through Congress and the President’s signature in December. That act included permission for small employers to now use HRA’s to pay for qualified out-of-pocket medical expenses for their employees and to fund individual health insurance premiums. In other words, employers can use pretax dollars to help employees to purchase their own insurance on the open market while capping the employer’s contribution at a reasonable amount. There are, of course, many restrictions associated with this opportunity, but it is worth consideration by smaller employers in 2017.
  • Good Documentation: Every employment lawyer would like for you to add this to your resolution list each year. Memories fail and managers move on, so written documents are often an employer’s only evidence of the nondiscriminatory reasons that certain employment actions were taken. Understand and resolve that performance reviews, reasons for bonuses and merit increases, violations of policy, attendance problems, changes in job duties and disciplinary actions will be well-documented in 2017. I’ll help with any of kind of documentation, but I highly recommend that you get me involved whenever the documentation is of disability or religious accommodations, FMLA, harassment claims, overtime or other compensation problems, egregious policy violations, demotions, final warnings, layoffs and terminations.
  • Gratitude: Resolve that you will say “thank you” more often to your employees in 2017. Studies have repeatedly shown that this one action can enhance employee engagement and loyalty even more than raises and promotions. Gratitude can also make your workplace so much more enjoyable for all of your employees.

 

New Employees Should Complete New I-9 Form

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If you are hiring any employees, this is just a quick reminder that you need to start using the new I-9 form to confirm your new worker’s eligibility to be employed in the United States.

The new I-9 form was released on November 14, 2016 (look for that date on the form to verify that you are using the most recent one). You already can be using the new form, but it is mandatory that you are using that new form by January 22, 2017. My suggestion for making it easy on yourself is to begin using the new form today, or at least no later than January 1, 2017, so that you start the new year off right.

You do not have to update any of your completed I-9s on current employees with the new form. It is only mandatory that you start using the new I-9 with employees who are hired beginning in January 2017.

As you know, employers must assure an I-9 is completed on each new employee hired (citizen or otherwise) to document identity and authorization to legally work in the United States. The new employee must bring the proper forms of identification and work authorization so that you can complete the I-9 by the third business day of employment, or you can no longer employ that worker.

Mistakes happen on an incredibly frequent basis while filling out I-9 forms and employers get penalized substantially if Immigration and Customs Enforcement (“ICE”) audits an employer’s forms. Here is a guide to the most common mistakes and how to avoid them.

Another way to avoid mistakes on the I-9 form is Continue reading New Employees Should Complete New I-9 Form →