Immigration continues to be a hot button issue around the country, and many employers are under increased scrutiny regarding potential hiring of illegal immigrants.
According to the Immigration Reform and Control Act of 1986, all employers, including private clubs, are required to verify that all new workers are legally eligible to be employed in the United States. According to I-9 Central, maintained by the U.S. Citizenship and Immigration Services, employers must meet several requirements to be considered in compliance or face the penalties:
Employers must:
- Verify the identity and employment authorization of each person hired after Nov. 6, 1986. For employment in the Commonwealth of the Mariana Islands (CNMI), this verification requirement applies to persons hired after Nov. 27, 2009.
- Complete and retain a Form I-9 for each employee required to complete the form.
Employers must not:
- Discriminate against individuals on the basis of national origin, citizenship or immigration status.
- Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States.
Employers who violate the law may be subject to:
- Civil fines (up to $16,000 per worker for civil violations or discrimination, up to $1,100 for each form for failure to comply with I-9 requirements, and up to $3,000 for each unauthorized alien an employer knowingly employs).
- Criminal penalties when there is a pattern or practice of violations (up to 6 months in prison).
- Debarment from government contracts.
- A court order requiring the payment of back pay to the individual discriminated against.
- A court order requiring the employer to hire the individual discriminated against.
These regulations have forced employers to walk a tight line between being thorough in verifying worker eligibility through I-9 verification while avoiding questions about an employee’s national origin or heritage that could be considered discriminatory. How then can clubs best protect themselves from liability?
The Verification Process
During the employment verification process, consistency is key. In general, the club must verify the eligibility of all new employees within three business days of a new employee’s start date.
Employees should be presented with the I-9 form and instructed to first complete Section One. The I-9 Form sets forth a list of acceptable documents that an employee can use to verify their identity and employment eligibility, and employees are entitled to select which documents from the list they wish to present. The acceptable documents are broken up into Lists A, B and C, and there are different requirements for the number and kind of documents that are considered sufficient to verify identity and eligibility. Employees must submit either one document from List A, or one document from both Lists B and C. For more information on acceptable documents, please see the accompanying article “I-9 Identity and Verification Documents: A Breakdown of Lists A, B and C.”
Once employees present the required documents, the club must review the documents in the presence of the employee to ensure that the documents confirm the information in Section One and ensure that the documents do, in fact, belong to the employee.
Section Two of the form requires that the club attest that the employee presented the required documents, that the club inspected those documents, and that those documents appeared to be genuine and accurately applied to the employee in question. When reviewing the documents, employers must record the type, source and expiration date of each document presented.
Clubs are permitted to keep copies of the documents that employees present for their I-9 verifications. Though the documents can be used to establish that a club reasonably determined an employee was legally able to work, it can backfire if the appropriate documents are not, in fact, presented and recorded. Thus, clubs should establish a standard procedure to ensure consistency of documentation—and hold firm to it whether or not potential employees are U.S. citizens.
E-Verify
In order to truly alleviate the potential liability associated with document verification, all clubs should use the E-Verify Program. The E-Verify program is the federal government’s web-based tool that enables employers to electronically verify the identity and work authorization status of new employees. It works hand in hand with Form I-9 and provides employers with a way to confirm employment eligibility beyond the documents employees present.
E-Verify takes the information received from the I-9 Form and runs it through databases from the Department of Homeland Security and the Social Security Administration. Within seconds, the employer receives a confirmation of work eligibility for the employee or a non-confirmation that requires additional information from the new hire.
Most importantly, the E-Verify program provides an employer with one overarching benefit: protection against prosecution for hiring an illegal alien. Should an employer use the program and receive a confirmation that a new hire is legal, and it is later determined that the employee is in fact an illegal alien, the employer shall be immune from federal civil or criminal prosecution. In other words, an employer who uses E-Verify cannot be held accountable for the government’s mistaken work eligibility confirmation.
With the federal government now taking an aggressive tack to stop the hiring of illegal aliens, the E-Verify program gives clubs an official federal government mechanism that helps to remove the uncertainty that surrounds reviewing and accepting documents that purportedly establish identity and work eligibility. NCA suggests that all member clubs go to www.dhs.gov/e-verify and enroll today.
If clubs establish firm standards for I-9 completion and employment verification, it can help insulate clubs from potential liability and ensure that they are in compliance with legal requirements. Clubs can also conduct regular internal audits of and training for employees responsible for I-9 completion and compliance, to ensure consistency of standards and practices.
Jackie Abrams is NCA’s communications manager.