Employing undocumented workers has long been a concern for large companies, especially when it comes to on-site investigations and government raids. Immigration officials sweep into large operations such as meatpacking plants or major construction sites and haul away hundreds of undocumented workers.
In June of 2007, U.S. Immigration and Customs Enforcement (ICE) announced indictments against several roofing companies in Kansas City, Mo. According to ICE, a federal grand jury indicted the companies and their owners, along with several employees, for using a workforce composed largely of illegal aliens and for money laundering. With the announcement, the immigration agency warned small companies that it will no longer ignore them in favor of prosecuting larger offenders.
"Today's arrests should put businesses on notice that ICE will criminally charge those employers who knowingly transport and employ illegal aliens as part of their business model," said Pete Baird, assistant special agent in charge, ICE Office of Investigations in Kansas City, in a press release. "We will use all of our authorities to shut down businesses that exploit and harbor an illegal workforce. Across the country, the United States Attorneys have been crucial partners in our efforts to enforce our work-site laws."
So what can you do to ensure that you are in compliance and that you are not the target of the next ICE raid or grand jury investigation? There are several steps employers can take to avoid hiring undocumented workers. Using reasonable checks and safeguards can assure a legal defense, even if it turns out some employees presented forged or misused documentation when they were hired.
Comply With I-9 Laws
Under the Immigration Reform and Control Act, every employer in the United States is responsible for verifying the employment eligibility and identity of all employees hired to work in the United States after Nov. 6, 1986. In order to implement the law, employers are required to complete an Employment Eligibility Verification form - the I-9 form - for each employee. That includes U.S. citizens as well as foreign workers. Employers do not file I-9 forms with the government. Instead, an employer is required to keep every I-9 form on file for three years after the date of hire or one year after the date the employee is terminated - whichever is later.
Forms can be filed away at a worksite, corporate headquarters or another location, but they must be available within three days if the government requests the documents.
According to the U.S. Citizenship and Immigration Services, employers are responsible for ensuring the forms are completed, and they must review the employee's documentation and record that information on the form. Employers don't need to be document experts and verify that all documents are genuine; in fact, requesting more or different documents can open up an employer to charges of unfair immigration- related employment practices.
If the document appears to be genuine and belongs to the person who presented it, an employer is not held responsible if the document turns out to be a fake or was originally issued to someone else.
Secondary Verification
Employers may also want to consider secondary verification measures, such as E-Verify (formerly known as Basic Pilot) and the Social Security Number Verification System (SSNVS).
USCIS, the Social Security Administration and the Department of Homeland Security work together to administer the E-Verify program. EVerify involves checking both Social Security and Homeland Security databases automatically to verify the employment authorization of all newly hired employees. It provides a company with employment authorization for all newly hired employees, whether or not they are U.S. citizens. E-Verify is voluntary, open to any employer and currently free. To find out more, visit ice.gov/partners/ employers/worksite/baspipro.htm.
Through the SSNVS, employers can go online to verify that an employee's name matches the social security number he or she has given when hired. They can verify up to 10 names and numbers online immediately, which is convenient when verifying new hires. Employers can also upload more names and numbers overnight and receive the results the next business day; this is particularly useful if an employer wants to verify an entire payroll's worth of names and numbers. The service is available to all employers, but it can only be used to verify current or former employees and only for reporting wages for W- 2 purposes. For more information, visit the Social Security Administration at ssa.gov/employer/ssnv.htm#overview.
Mismatch Protocol
If you decide to use the SSNVS, it's possible a name and social security number will not match up. In many cases, a mismatch may result from a simple error. According to ICE, thousands of employers receive "nomatch" letters from the Social Security Administration every year.
ICE has announced a final rule, effective Sept. 14, 2007, which requires employers to take certain steps once they receive a no-match letter. Those steps include: verifying within 30 days that the mismatch was not based on a transcription or clerical error, asking the employee to confirm that the documentation he or she has provided is accurate, and asking the employee to work directly with the Social Security Administration to resolve the issue. If this solves the problem, employers must follow the instructions on the letter to correct all the information and keep a copy of the verification.
If the information can't be corrected, employers must complete a new I-9 form, using documentation other than the employee's social security number that raised the red flags. "Employers unable to confirm employment through these procedures risk liability for violating the law by knowingly continuing to employ unauthorized persons," ICE warned when it announced the final rule in August.
Employee Handbooks
No matter how small the operation, every business should have an employee handbook that everyone receives upon joining the company. That handbook should clearly outline the proper documentation workers should have, along with the company's dedication to employing only those who are in this country to work legally.
Immigration and employment law can be very confusing. Demand too much documentation and you may get in trouble for harassing an employee. Ask for too little and the government may conclude you haven't fulfilled your obligations to employ a legal workforce. With the current spotlight on illegal immigration, and the federal government's new focus on smaller companies, it's wise to periodically consult with counsel to ensure that your policies are in line with current legislation. That way, pool and spa companies will have some legal protection if the feds come knocking on the door, demanding proof that your employees are authorized to be employed.
