The hiring process can often be fraught with complications for employers: not being able to find qualified applicants, managers asking illegal questions during the interview process, a new employee not living up to your expectations. One potential problem that isn’t always top of mind for employers (but definitely should be) is the possibility that a potential candidate isn’t legally eligible to work for your company.
Here’s a little history for you: The Immigration Reform and Control Act (IRCA) took effect in 1986 to prevent the employment of illegal aliens in the United States. IRCA requires employers to hire and retain only individuals authorized to work in the United States, and imposes strict penalties on those that knowingly employ illegal aliens. To enforce these guidelines, IRCA requires employers to verify a potential employee’s eligibility to work in the United States by completing the Employment Eligibility Verification Form (Form I-9). By completing Form I-9, the employer is certifying that it has viewed documents proving that the potential employee is authorized to live and work in the United States.
If an employer becomes aware or has a reason to suspect that an employee is unauthorized to work in the United States, they should take the matter very seriously. Under IRCA, employers can be fined for not complying with Form I-9 guidelines, accepting fraudulent documents when determining employment eligibility or discriminating against individuals based on their nation of origin or citizenship status. Fines range from $110 to several thousand dollars, depending on the offense and the frequency of offenses. And, as one Houston-based business found out the hard way, being found guilty of “knowingly and repeatedly” hiring immigrants who didn’t have permits to work in the US can even result in arrests.
According to an article published by the Houston Chronicle, the owners and two other employees of Houston tortilla factory La Espiga de Oro were recently arrested and now face federal charges that they were part of a “conspiracy to harbor people illegally in the United States and that they continued to hire them.”
These arrests are part of years-long investigation dating back to 2008 when, according to the report documents, the Homeland Security Investigations Workforce Enforcement Group received a tip line report alleging that the factory was “knowingly hiring people who lacked legal permission to be in the United States.” The investigation was extensive, and included government informants posing as “unauthorized aliens” who were hired by the company, despite having told the managers that they didn’t have the proper documents needed to be eligible for employment in the US. The informants conducted surveillance on the company while on the job, including making recordings of conversations. One such alleged recording includes a conversation the defendants had “discussing how to get around the system by using fraudulent documents, such as counterfeit Social Security cards,” according to the Houston Chronicle article.
So what can employers do to protect themselves against fines and possible arrest? We’ve outlined a few practical strategies below that will help make sure you are hiring and retaining employees who are authorized to work in the US:
For more information on the Form 1-9, visit www.uscis.gov/i-9.
As evidenced by the case of La Espiga de Oro, the US government has greatly increased workplace investigations, exposing more employers to penalties for noncompliance and making it more important than ever to take compliance seriously. It is important to conduct internal audits regularly to ensure your business is complying with the law. You may also want to consider consulting an attorney to review your procedures and forms to be as prepared as possible in the event of an audit.
G&A Partners, a leader in the HR outsourcing and professional employer organization (PEO) industries, offers a lifeline to businesses by delivering both strategic as well as tactical HR and administrative support. Our experienced human resource professionals study the nuances of federal and state labor laws so they can help companies understand and expertly execute procedural tasks surrounding government compliance, including processing new hire paperwork like Form I-9. With G&A Partners managing your HR labor law and HR compliance, you can rest assured that your employees are afforded the protection of federal laws, and that you are protected from the risk of human resources noncompliance.
Learn how G&A Partners can help you protect your business and employees through HR labor law and compliance services. Contact us by phone at 1-800-253-8562 to speak with an expert or visit https://www.gnapartners.com/contact-us/ to schedule a business consultation.
This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.