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Expert Offers Advice On Legal Employees

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By KLINT LOWRY | The Suncoast News

Published: February 2, 2008

NEW PORT RICHEY, Fla. - NEW PORT RICHEY, Fla. - With illegal immigration and undocumented workers being among the hot-button issues of the day, there's no telling when the government might decide it's time for a crackdown. Whether a business owner thinks "illegals" are that big of a problem, no business owner wants it to become their problem.

"This is one of the issues they're talking about in Congress," a local business law attorney, Debora Ann Diaz, said. "Maybe we don't have an illegal alien problem, maybe we just need to enforce what we have in existence."

Diaz was a guest speaker Tuesday at the Pasco County and West Pasco Chamber of Commerce 2008 Business Development Week at Pasco-Hernando Community College. Her topic was "Is your employee legal?"

For all the aliens who come into the country illegally, there are also a large number of aliens who come into the country and obtain legal working status, she pointed out.

"Currently, immigrants represent one in nine U.S. residents, one in seven U.S. workers, one in five low-wage workers and one in two new workers," Diaz said. "From 1999 to 2005, 4.1 million workers arrived from other countries, representing 86 percent of the net increase in employed people over that period."

The Immigration, Reform and Control Act has been law since 1986, requiring employers to verify the identity and legal right to work of the people they hire. For anyone who has gotten a job in the past 22 years, this is the law that spawned the I-9 form.

As cut and dry as the requirement may seem, there are ways to do it wrong. Penalties for inadequate record-keeping range from $100 to $1,000 per violation. Penalties for knowingly employing an undocumented alien range from $250 to $10,000 per violation.

"The penalty isn't against the employee; the penalty is against the employer," Diaz said. With times being what they are, she added, this is a good time for existing businesses or those starting new businesses to review how they collect and maintain this information, in case government auditors come calling.

Diaz offered the following rules and tips:

• Every new employee has to has to fill out an I-9 and provide the accompanying documentation, whether they are recent immigrants or their ancestors came over on The Mayflower. You don't have to get an I-9 from someone who is hired as an independent contractor. Also, if you bring in people from a temp agency, they may be working at your company, but they are employees of the agency, and it is the agency's obligation to have the I-9 on file.

• Don't have employees fill out an I-9 until their first actual day on the job. If you have them fill it out beforehand and then for some reason you don't hire them, it leaves you open to a discrimination claim.

• New employees must provide documentation proving their identity and legal work status within their first three days on the job. If they don't, Diaz said, the employer is liable, and should dismiss the employee.

• When it comes to the documentation, the old phrase "accept no substitutes" applies. Employees must present original documents in person. Photocopies, faxed copies, e-mailed images are unacceptable. The only exception is certified copies of birth certificates.

• Check documents closely to see that they are valid and current. "To that end, the employer is not expected to be a document expert," Diaz said. If there is obvious tampering with a document or it's clearly fake, that's one thing. If something looks fishy but the employer isn't sure, they should contact the nearest immigration office for an expert opinion.

• If the document has an expiration date, make sure it hasn't passed. An expired green card – which despite the name is no longer Green, Diaz noted – isn't a valid piece of I-9 material.

• A Social Security card or documentation from the Internal Revenue Service isn't always proof of being eligible to work. The Social Security Administration issues several different kinds of cards, Diaz said, some of which read "not valid for employment." Similarly, paying taxes doesn't mean a person has worked. Many immigrants have dealings with the IRS over things like investment income, royalties or scholarships.

• If you buy an existing business, you are also buying the liability if the former owners did a bad job documenting their workers, Diaz said. She recommends starting the documentation process over again.

There is no requirement to make copies of the documents employees provide. Doing so, however, is highly recommended, Diaz said, as a way for the employer to show they did everything they were supposed to do to get the required documentation and what that documentation looked like. But if you make copies of anyone's forms, Diaz warned, you have to do it with everyone, again to avoid the appearance of discrimination.

Employers must keep those records until one year after an employee leaves the company. Keep electronic backup records if you like, but save the original I-9s.

Even if a company has more than one facility, Diaz recommends keeping all I-9 forms in a single central file for easy retrieval, rather than in each employee's personnel file.

Upon request from a government auditor, an employer has three days to come up with requested documents.

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