Personnel e.bulletin – November 2015
Hiring and Immigration Laws
Prepared for the PHCC Educational Foundation by TPO, Inc.
The HVAC and plumbing industries are facing worker shortages because of the aging workforce, job growth, and other factors. Therefore, openness to hiring immigrants can provide a new pool of potential employees.
The benefits of hiring immigrant workers is not limited to simply filling open positions. Companies can diversify their workforce, expand the business into new communities, and reach a whole new audience of potential customers. But companies must take care to follow the rules! U.S. Immigration and Customs Enforcement (ICE) routinely conducts workplace audits, and penalties for noncompliance with employee verification requirements could include fines, criminal penalties, debarment from government contracts, and court orders.
ICE has audited, debarred, and imposed fines on more companies than ever before since 2009. The president has also emphasized greater employment verification and enforcement against employers that routinely hire illegal immigrants or retaliate against employees. It’s more important than ever that small businesses understand and comply with requirements for verification of employee eligibility and nondiscrimination.
The Immigration Reform and Control Act (IRCA) was passed and went into effect on November 6, 1986. With its passage, for the first time, employers were required to verify that new hires were authorized to work in the United States. Specifically, IRCA:
• Makes it unlawful to knowingly hire or continue to employ aliens not authorized to work in the United States:
— Actual knowledge is usually defined as direct evidence supplied by the employee,
— Constructive knowledge is generally defined as an “inference made by a reasonable person due to the totality of relevant circumstance” – that is, it’s pretty obvious to most people;
• Requires employers to actively verify the identity and employment eligibility of all employees using Form I-9;
• Provides for employer sanctions for any unlawful hire and for failing to fulfill paperwork requirements; and
• Prohibits discrimination based on national origin or citizenship status.
All U.S. employers must verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986, by completing an Employment Eligibility Verification form (Form I-9) for all employees.
• U.S. citizens;
• Lawful permanent residents (green card holders);
• Pending lawful permanent resident applicants; and
• Nonimmigrant workers.
There are a few, very specific, exceptions to the requirement to complete an I-9 Form:
• Employees hired before November 7, 1986;
• Employees hired for private, casual domestic work on an irregular basis;
• Employees who are true “independent contractors” as defined by the IRS test proving independent contractor status;
• Employees not physically working on U.S. soil; or
• Employees hired by a dual employer or joint employer, where there is a defined relationship between a professional employer organization (employee leasing firm or temp agency) and the employer and where the professional employer organization bears responsibility for employment verification.
Only those employees in the above situations are exempt from completing the form. Part-time employees and individuals hired for short-term assignments are NOT exempt from completing the form.
The E-Verify system compares information from the I-9 Form with other federal government databases to verify workers’ employment eligibility. Specifically, employers enter information from a new hire’s I-9 into the E-Verify system, which goes to the Social Security Administration and U.S. Citizenship and Immigration Services. Those agencies then determine whether the information matches government records and whether the new hire is authorized to work in the United States.
Since September 8, 2009, federal contractors and subcontractors have been required to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify Clause.
The following link provides a portal to information about the E-Verify system, including webinars and updates: http://www.uscis.gov/e-verify.
A little-discussed side of IRCA (as amended) involves its anti-discrimination provisions, which specifically prevent employers from engaging in unlawful conduct during recruiting, hiring, or Form I-9 processing, including:
• Discriminatory document abuse – Avoid treating individuals differently on the basis of national origin or citizenship status. Don’t request that employees provide more documents than required, and don’t request particular documents. Don’t reject documents that reasonably appear to be genuine and that belong to the employee presenting them. Don’t treat groups of employees differently based on outward characteristics – treat everyone identically.
• Citizenship or immigration status discrimination – Don’t treat individuals differently based on their citizenship or immigration status.
• National origin discrimination – Don’t treat individuals differently based on their national origin.
• Retaliation – Don’t intimidate, threaten, coerce, or otherwise retaliate against an individual because the individual has filed an immigration-related employment discrimination charge or complaint, has testified in such a matter, or has otherwise asserted his or her rights.
To avoid making any mistakes in this arena:
• Do not set different employment eligibility verification standards or require that different documents be presented by employees because of their national origin and citizenship status. Each employee must be allowed to choose the documents that he or she will present from the lists of acceptable Form I-9 documents.
• Do not request to see employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen.
• Do not refuse to accept a document, or refuse to hire an individual, because a document has a future expira¬tion date.
• Do not request that, during re-verification, an employee present a new, unexpired Employment Authorization Document (EAD) if he or she presented one during initial verification. For re-verification, each employee must be free to choose to present any document either from List A or from List C.
• Do not limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local govern¬ment contract. On an individual basis, you may le¬gally prefer a U.S. citizen or national over an equally qualified alien to fill a specific position, but you may not adopt a blanket policy of always preferring citizens over non-citizens.
It’s Not a Trivial Matter
While ensuring the right to work in the United States has always been important, 9-11 has made this job a matter of national security as well. It is now the Department of Homeland Security that manages the I-9 process. This control has been strengthened with the addition of the E-Verify requirement for federal contractors and subcontractors and availability to all other employers.
As with much of the paperwork we face on a day-to-day basis, I-9s may seem like just another form that needs to be filled out. But this is a form that has teeth, and millions of additional dollars have been poured into auditing for these forms at employers large and small.
Failure to properly complete paperwork can generate penalties as high as $1,100 per document. Knowingly hiring an illegal alien can run as high as $3,200 per violation and grow to $16,000 per hire quickly if the infringement is repeated. Document fraud carries maximum penalties of between $3,200 and $6,500 per worker. Document abuse carries similar penalties to failures to properly complete paperwork. And unlawful discrimination can lead to maximum penalties between $3,200 and $16,000 per violation. A pattern of practice can produce a jail sentence. And none of this takes into consideration the time, disruption, and legal costs associated with defense should you be involved in an illegal immigration matter.
It is simple to set up the right system and take the extra time needed to maintain the system properly. If you’re in doubt about any aspects of what is required, seek the assistance of a qualified human resource or immigration specialist. Your small investment of time keeps legal U.S. workers employed and helps ensure the security of our nation.
This content was developed for the PHCC Educational Foundation by TPO, Inc. (www.tpo-inc.com). Please consult your HR professional or attorney for further advice, as laws may differ in each state. Laws continue to evolve; the information presented is as of October 2015. Any omission or inclusion of incorrect data is unintentional. Please note this article is not intended to provide legal advice or to substitute for supervisor employment law training.
The PHCC Educational Foundation, a partnership of contractors, manufacturers and wholesalers was founded in 1987 to serve the plumbing-heating-cooling industry by preparing contractors and their employees to meet the challenges of a constantly changing marketplace. If you found this article helpful, please consider supporting the Foundation by making a contribution at http://www.phccfoundation.org.
Read Issue — PDF format, 182KB