The time audit your I-9 practices is now.
OK, we’ll let you finish your summer vacation. But right after that, you really need to dig into the I-9 rules and make sure that your company is in compliance.
- The Office of Special Counsel (OSC) – part of the Department of Justice that enforces the anti-discrimination provisions in the I-9 law – has entered into several agreements with other agencies to assist in enforcement. The latest is with the National Labor Relations Board (NLRB). See here. This means that the likelihood of I-9 compliance errors being discovered is higher.
- Even before this enforcement agreement, OSC is aggressively enforcing I-9 compliance. The most recent example is Macy’s department stores. See here. Although the OSC does not state the employer’s errors specifically in the settlement agreement, $275,000 later, Macy’s is required to change its I-9 practices for re-verification, including its electronic I-9 procedures (which, of course, are determined by the I-9 vendor).
- OSC is also taking the initiative to educate employees (and employers). We were contacted just today by OSC for such an outreach. OSC has also released a video just last Friday on YouTube to help educate employers.
- Immigration & Customs Enforcement (ICE) audits also continue apace, mostly focused on employers that are likely to have unauthorized workers.
Some I-9 errors to watch for:
- Requiring more documents than necessary. Although you would think belt and suspenders is a good thing, it is actually a discriminatory practice. The I-9 should be completed only with what is necessary and any extraneous documents presented should not be recorded.
- Failing to fill out all necessary blanks in the I-9 form (and failing to ensure the employee do so). The employer is fined for this, not the employee.
- Using an electronic I-9 program that locks out the choice of documents in Section 2 to match the employee’s statement of immigration status in Section 1. The employer is fined for this, not the vendor.
- Not allowing the employee to choose the documents to be presented. Dictating which documents will be acceptable (besides the official list of acceptable documents) is a discriminatory practice.
If you are saying to yourself, “We never make those mistakes”, you might want to check your I-9s. In audits we have done for our clients (even really conscientious ones), we almost always find at least the first and second error listed above (i.e., too many documents recorded or blanks that should have been filled in and weren’t). Many electronic I-9 programs also have the third mistake imbedded in them, which effectively causes the employer to commit the fourth mistake.
No matter what happens with immigration reform, I-9 compliance is here to stay and the government does not take a vacation from its enforcement efforts.