The Employer's Role in Verifying Employment
Paperwork. Nobody likes it, but everyone has to do it. Documentation on a new hire can be the most cumbersome, but is an absolute must. Detailed paperwork not only allows the new employee to collect a paycheck and be eligible for fringe benefits, it protects you, the employer.
Take for example the required I-9 form. Failure by the employer to properly document all new employees and their legal ability to work can result in major fines and penalties.
The Law The law governing I-9 states that an employer is prohibited from knowingly hiring or knowingly continuing to employ an unauthorized worker.
The Employer Responsibility The employer is responsible for ensuring that their employees are authorized to work in the U.S. The completion of the I-9 Form and inspection of the supporting documents helps to establish that individual's identity and work eligibility. I-9 Forms must be fully completed and signed on the day the employee begins work. It is important to note that even though the employee completes Section 1, the employer can still be liable for any violations or omissions. Therefore, it is important that the employer thoroughly check the document and supporting legal documents provided by the employee.
The employer must review original verification documents presented by the employee and complete Section 2 of the I-9 form within the first three days of hire. Even if the individual is hired for 3 days or less, the entire form must be completed. In this case, you need to complete it at the time the employee begins work.
Common Questions Here are a few common questions taken from the Immigration & Naturalization Service (INS) Publication, "Handbook for Employers: Instructions for Completing Form I-9" (11/91)
What should I do if the person I hire is unable to provide the required documents within 3 business days of the date employment begins?
If an employee is unable to present the required document or documents within 3 business days of the date employment begins, the employee must produce a receipt showing that he or she has applied for the document. In addition, the employee must present the actual document to you within 90 days of the hire. The employee must have indicated on or before the time employment began, by having checked an appropriate box in Section 1 that he or she is already eligible to be employed in the United States.
What happens if I properly complete a Form I-9 and INS discovers that my employee is not actually authorized to work?
· You cannot be charged with a verification violation. You will also have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien, unless the government can show you had actual knowledge of the unauthorized status of the employee, if you have done the following:
· Ensured that employees fully and properly completed Section 1 of the I-9 at the time employment began;
· Reviewed the required documents which should have reasonably appeared to have been genuine and to have related to the person presenting them;
· Fully and properly completed Section 2 of the I-9, and signed and dated the employer certification; · Retained the I-9 for the required period of time; and
· Made the I-9 available upon request to an INS, DOL (Department of Labor), or OSC (Office of Special Counsel) officer.
Can I fire an employee who fails to produce the required documents within 3 business days?
Yes. You can terminate an employee who fails to produce the required document or documents, or a receipt for a document, within 3 business days of the date employment begins. However, you must apply these practices uniformly to all employees. If an employee has presented a receipt for a document, he or she must produce the actual document within 90 days of the date employment begins.
Potential Penalties The employer's first time penalties range from $100 - $3,000 depending upon the nature of the offense. Companies which engage in a pattern or practice of knowingly hiring unauthorized workers may face fines of up to $3,000 per employee and/or six months' imprisonment.
Your safest bet is to always remain proactive in completing the necessary forms and to verify all supporting documents promptly.
About the author: Tom Perkins is a business solutions coach and certified personal trainer who leads fitness professionals to profitability. Visit his website at www.FitnessIndustrySolutions.com.