It is not unusual to hear that Buffalo, New York has been affected by ice in the winter time. I am sure all of us have seen pictures of wind-driven ice caked on the landscape around Buffalo. In this particular case however, it is not ice that is the problem, rather it is ICE or the Immigration and Customs Enforcement. They are the folks that enforce the provisions that all companies must comply with regarding the infamous I-9 form.
How are they not aware?
It is hard to believe that in this day and age that companies do not know about or comply with the immigration law, specifically the requirement to have a completed I-9 form from every employee hired. The I-9 has been around since 1984 and has undergone multiple changes since then, including a new form which must be used by all companies effective January 22, 2017. You can find this new form here and an explanation of how it is to be used here.
Despite the fact that the form has been around for 31 years, many employers still not use it or use it properly. I have written about the I-9 and what it costs companies at least 15 times, including Screwing up your I-9s is serious business! That is what happened to a medical transportation company in Buffalo.
The company was audited in 2013 and multiple mistakes were found, such as, forms with missing information, not retaining forms on terminated employees and forms not completed on a timely basis. As a result the company was fined $109,000. The company thought this was unfair and went to court to get the fines reduced or removed. A judge did indeed reduce the fine to $75,000 “reason[ing] that the company was a small business, it had no prior history of violations, there was no evidence of bad faith, and it had not hired unauthorized workers.” The company did not like the ALJ’s decision and appealed further. They argued:
- They should have been warned
- They basically complied by keeping copies of the employee IDs
- They said the judge’s decision was arbitrary
The responses from the Appeals judge were:
- ICE does not have to warn anyone that is up to their discretion.
- Keeping copies of ID does not relieve an employer of the obligation to complete the I-9
- The ALJ’s decision was not only legal it was fair. They were lucky they got a fine reduction.
Steps to take to prevent these problems
In my blog post mentioned above I gave the following advice to avoid I-9 problems.
“To avoid fines of $110 to $1100 per form, have a process in place. Here are some steps you can take:
- Make sure the new employee has their part of the form complete on their first day of employment;
- Make sure they present for verification the appropriate ID, as detailed on the back of the form. You can send them the list ahead of time. DO NOT dictate to them what form they can present;
- The person that signs the form MUST see the actual ID. To sign the form without having seen the actual ID is an act of perjury.
- Make sure the ID is presented no later than the end of their third day of employment. If they cannot present that ID in that timely manner they MUST be terminated. If you impress on them this fact it will send the urgency of the message of bringing proper ID.
Having this process in place will help insure you don’t get fined the way the above mentioned company did.”
The Trump administration has made a lot of noise about being tough on immigration. One of the moves may be to become even tougher on companies’ verification processes. Unlike other aspects of employment law this may be one area where the new administration may be even tougher. Get your house in order, follow the rules and use the new form for all new hires as of January 22nd.
A hat tip to attorney Hans Murphy of Barnes & Thornburg LLP for his post on the Buffalo situation and providing me the inspiration for this post.