ICE workplace audits are on the rise. And if you didn’t know, the federal government and California are not harmonious in their views on immigration issues. That means that ICE raids on California employers are likely to continue, especially in target industries such as hospitality, construction, agriculture, tech, and manufacturing. And if you want to minimize your company’s exposure to massive fines and possible criminal prosecution, this issue should be on your radar.
One of the biggest traps of late seems to be the I-9 form. Under federal law, all employers in the US are required to complete the I-9 in order to verify the identity and employment eligibility of new hires. Employers are required to have a completed I-9 on file for every employee. The employee must complete Section 1 of the I-9 at the time of hire (and absolutely not before acceptance of a job offer). The employer must complete Section 2 of the I-9 within three business days of the hire date. I-9s must be retained for three years after the date of hire, or one year after the date employment ends, whichever is later. Failure to abide by these rules can lead to very severe penalties and fines.
When ICE wants to examine your workforce, it provides a Notice of Inspection that gives you just three days to get your I-9s and payroll records ready for review. Once that happens, it is very hard to fix any problems you may have. There just isn’t time and ICE has discretion to disregard any remediation efforts after the service of the NOI.
What can be wrong with an I-9, you ask? Well if our audits of I-9s are indicative, close to 50% if not more usually have problems, including:
- Incomplete, with information, signatures, and dates missing.
- Incorrect information, such as a document for List B or C in the List A column.
- Signatures that don’t match the names on the documents.
- Blank Section 2 with the List A or B and C documents simply attached.
- Documents that don’t match the names on the form.
- Older or incorrect versions of the I-9 used.
- And on and on and on….
The I-9 may look like a simple form, but it is not and can cost the employer significant cash in fines … and possible criminal prosecution! So if the person completing your new hire paperwork isn’t skilled or trained on how to complete this form, chances are your I-9s are imperfect. It is not uncommon when we perform I-9 audits to see the same mistake(s) repeated over the course of thousands of I-9s! That means risk, and these days, big risk.
The other problem is that you can’t just ask specific employees to re-verify their status, for example if there is a rumor that the employee may be undocumented, because that can lead to claims of discrimination. Remember national origin and citizenship status are protected categories. So the only way to fix the I-9s is to audit all of them, fix all of the mistakes that you can, and do it before any audit or notice of inspection from a government agency.
Oh, and please do not audit without the attorney-client privilege protection. The last thing you want are emails indicating that your I-9s are wrong, or your employees are illegal, and you knew about it and didn’t fix it. Knowingly employing, hiring, or continuing to employ undocumented workers is a crime. Employers are subject to criminal prosecution—yes, that means possible jail time.
What can employers do proactively to mitigate civil penalties and exposure to criminal prosecution?
- #1! Work with counsel to conduct a proactive internal audit. Doing so before ICE arrives with a NOI is the most effective way of mitigating fines.
- Ensure your HR representative(s) responsible for completing I-9s with new hires is well trained and savvy as to what they legally can and cannot say to the employee during the verification process. Simply asking the employee to present a specific document in the course of completing the I-9 is unlawful.
- Conduct regular training for HR personnel and team leaders/managers who interact with employees as to the do’s and don’t’s of communicating with employees.
- Establish immigration compliance I-9 and/or E-Verify standard operating procedures—also used to show good faith compliance and a factor for mitigating fines.
- If storing I-9s electronically, check with counsel to ensure you are storing them properly and in a way that is not further exposing the company to additional violations.
- Streamline your company I-9 process so as to minimize room for error in delinquent completion of the I-9 or mistakes on dates of hire.
- Establish a ‘tickler’ calendar reminder system to handle reverification for those employee’s with work authorization documents containing an expiration date. Remember- the burden is on the employer to ensure their employees are work authorized during the entire period of employment.
- Act sensibly: employers should not be overzealous in their employment verification practices as this too may lead to claims of discrimination and/or retaliation.
This is budget planning season for many employers. Our advice is to add an I-9 audit to your budget for 2019.