Don’t Forget to Cross Your “Ts” and Dot Your “I-9s” When Hiring Employees

Wendel Rosen LLP

You just need to look around you to know that construction is once again booming. According to the U.S. Bureau of Labor Statistics the construction industry added 259,000 jobs nationwide from January through November 2015. While that’s certainly good news for the industry, as Wendel Rosen’s Evelin Bailey points out below, construction companies need to make sure they comply with federal I-9 requirements when they hire new employees regardless of their U.S. Citizenship or immigration status.

There’s a scene in Fun with Dick and Jane where Dick is dragged onto a bus by immigration along with other day laborers. Dick swears to the immigration officer that he is an United States citizen but because he was punched in the mouth earlier that day, his speech is slurred, his English is less than perfect and he gets deported. These days, Immigration and Customs Enforcement (ICE) is more likely to go after the employer and issue hefty Form I-9 paperwork violations than raid and deport workers.

Under the Immigration and Nationality Act (INA), employers are required to verify the legal work-authorization of all of their employees, regardless of U.S. citizenship or immigration status, using the Form I-9 and are prohibited from knowingly hiring unauthorized workers. While ICE prioritizes investigations involving critical infrastructure, ICE also focuses on industries that relies on foreign-born labor. According to the Bureau of Labor Statistics, there were 25.7 million foreign-born persons in the U.S. and 13.7% work in the natural resources, construction, and maintenance occupations.

Failure to comply with the Form I-9 exposes employers to both civil and criminal penalties on many fronts. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) recently issued a joint Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.  ICE is responsible for enforcing the employer sanctions provision of the Immigration and Nationality Act (INA), and OSC enforces the anti-discrimination provision of the INA. The guidance provides employers with information, including but not limited to, the scope and purpose of audits; considerations before conducting internal audits; details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and guidance regarding the anti-discrimination mandate.

A lot more employers are proactive about ensuring their I-9 practices comply with federal law. After all, an El Nino size I-9 audit storm hit employers with audits increasing from 250 in 2007 to more than 3,000 in 2012, resulting in over $15 million in administrative fines!  Earlier this year, ICE sought to impose a penalty of $186,859.75 against an Arizona construction company for 179 violations, where the construction company failed to prepare and/or present I-9s for 101 of its employees. The Arizona construction company was able to reduce the fine by approximately 50%.

In 2014, a Georgia construction company was not so lucky. It was ordered to pay a fine of over $228,000. A newspaper article appearing in the Atlanta Journal Constitution in 2010 prompted the ICE audit. The article quoted M&D’s foreman as saying that the company was employing workers on a job at the airport knowing they lacked valid employment authorization.

Based on these civil penalties, employers may tend to impose higher standards of proof on foreign-born workers, but remember that OSC is watching and enforcing the INA’s anti-discrimination provisions.  OSC filed a complaint against Louisiana Crane & Construction, LLC based on allegations that the company required work-authorized, non-U.S. citizens to provide specific documents to establish their employment eligibility. Louisiana Crane agreed to pay $165,000 in civil penalties to the government, establish a $50,000 back pay fund to compensate workers who lost wages because of the company’s practices, undergo monitoring for two years and train its employees on the INA’s anti-discrimination provision.

What’s an employer to do? Employers conducting internal I-9 audits now have guidance from ICE and OSC. The joint guidance was developed by ICE and OSC with input from agencies such as the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission—all of whom form part of an interagency working group whose goals are to enhance coordination in those cases where federal responsibilities to enforce labor, employment and immigration laws may overlap; to ensure that workers who cooperate with labor and employment enforcement may continue to do so without fear of retaliation; to ensure that unscrupulous parties do not attempt to misuse immigration enforcement or labor laws to thwart or manipulate worker protections or labor and immigration enforcement; and to ensure the effective enforcement of these laws. In other words, the Form I-9 may be subject to scrutiny several federal agencies, not just ICE. So … prepare. Winter is coming.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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