In addition to many other employment areas affected by the downturn in the economy, the human resources (HR) function has also taken a big hit. Many organizations have determined that, as staff is reduced, so is the attention on issues facing HR. One approach has been to outsource some or all of the activities typically overseen by HR, hoping to maintain the minimum amount of compliance necessary by law. Outsourcing can be an effective and economical approach, but beware things don’t fall through the cracks.
One item that has become a particular hot button for employers this year is I-9 compliance. Do you even know what an I-9 is? Remember when you first started your job and they told you to bring in your social security card and driver’s license? Well, those items were likely being requested to complete Form I-9. This form is proof that you, the employer, have made an effort to ensure that you are not knowingly hiring an employee who is not authorized to work in the United States. Some states, such as Colorado, also require additional forms to ensure that only those authorized to work in the U.S. are hired.
Form I-9 was a direct result of the Immigration Reform and Control Act of 1986 (IRCA). Over recent years many things about the I-9 process have changed. There is a new form that must be used. The list of documents that an employee can present has been amended. Immigration and Customs Enforcement (ICE) is now responsible for enforcing I-9 compliance and they are authorized to take action against employers who do not comply.
There are penalties for not properly completing the form ranging from $110 to $1100 per form. Additional civil and criminal penalties for knowingly hiring or continuing to employ individuals not authorized to work in the U.S. range from hundreds, even thousands of dollars per worker, to several years of jail time.
You may want to task one person in your organization with the responsibility of overseeing the I-9 process and provide that individual with a checklist and thorough training. S/he will learn, among many other things, that in order to avoid a discriminatory practice the employer must allow the employee to choose which forms will be presented from a list (not necessarily a driver’s license and social security card, as has been requested so many times).
As with any employment-related document, it is also important to be aware of retention guidelines for Form I-9. If you are in possession of documents that could have been purged, they still remain discoverable and are a potential liability.
For more information on completing Form I-9, there is a Handbook for Employers available at http://www.uscis.gov/files/form/i-9.pdf.
While reducing your HR staff and/or outsourcing some of the functions may have made some economic sense, remember that the employer is ultimately responsible for compliance, even if a third party administrator is involved. Many employers are finding it beneficial to conduct a HR desk audit to uncover areas that may not be in compliance, such as their handling of Form I-9.
For additional information on desk audits, please contact us at The Shinn Group at 303.972.7666, or eshinn@theshinngroup.com.
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