Do you know where
your I-9 forms are?
your I-9 forms are?
Drycleaners may not have much in common
with Wal-Mart, but they can take a precautionary lesson from
the predicament of the world’s largest retail chain and
the largest U.S. employer which ran afoul of U.S. immigration
law recently.
Wal-Mart learned last month that it is the
target of a federal investigation into the hiring of illegal
immigrants after agents with Department of Homeland
Security’s Bureau of Immigration and Customs Enforcement
raided the company’s headquarters in Bentonville, AK, and
60 stores across the country, arresting 250 workers as they
came off the overnight cleaning shift. Most of the illegal
workers were employed by cleaning companies, not by Wal-Mart
itself, and many of those arrested were from Eastern Europe.
The case raises two issues that should
concern all employers. First, with greater scrutiny of illegal
immigrants since 9-11, employers need to be scrupulous in
ascertaining the legal status of the people who work for them.
A law that has been on the book for 12 years requires that
employers check documents for everyone they hire and keep an
I-9 form on file.
Beyond that, the case raises the question
of a business’s responsibility to determine the legal
status of workers employed by contractors that the business may
hire. Wal-Mart uses 100 contractors to do cleaning work at 700
of its stores and says that they workers who were picked up by
federal agents were employees of those contractors, not of
Wal-Mart. Wal-Mart claimed it did not know that the
contractors’ employees were illegal.
If it turns out that Wal-Mart is
responsible anyway, the relatively simple process ascertaining
the legal status of employees could become more complicated. A
cleaner might have to determine all the employees of any firm
hired to do contract work are “legal.” Likewise,
any cleaner doing contract work for another firm might have to
satisfy that company’s need to know that all the
cleaner’s employers are “legal.” The
paperwork involved, heretofore minimal, could balloon.
While that possibility shouldn’t be
a concern until the outcome of the Wal-Mart case is known,
cleaners should make sure they are up to speed on the law and
have their paperwork in order.
“The best thing you can do is
attempt to be proactive,” IFI advised members in a Hot
Mail e-mail bulletin last month. “By requiring proper
work documentation initially, you protect yourself from future
immigration issues. If done correctly, employee eligibility
requirements should not take much time on your part to satisfy
immigration.”
The law requires employers to have an I-9
form for every employee, citizens of the U.S. as well as
non-citizen immigrants. The form verifies that the employer has
examined documentation that says the employee is legal to work
in the U.S..
The documentation requirement can be
satisfied by showing a valid U.S. passport, certificate of U.S.
citizenship or any of a group of documents that show the
worker’s status as legal. Failing that, a combination of
other documents, such as a driver’s license and a social
security card, or a photo identification and a birth
certificate, can be used.
The I-9 form is completed only after an
employee is hired. An employee who fails to produce the
required documents within three business days can be fired.
However, the employer must apply these practices uniformly to
all employees. An employee who presents a receipt for
replacement documents has 90 days to produce the actual
documents.
The government does not require employers
to be document experts. In reviewing documents presented by
employees, employers are held to a reasonableness standard. An
employer will not be held responsible if the documents
reasonably appear to be genuine or related to the person
presenting it, even if they turn out later to be false.
The I-9 forms are not filed with the
government, but they must be available for inspection on three
days notice. I-9 records should be kept on the company’s
files for three years after the date of hire or one year after
the date the employee is terminated, whichever is later.
The I-9 form is available on the web site
of the U.S. Citizenship and Immigration Service: uscis.gov/graphics/formsfee/forms/I-9.htm.
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