Employee Risk Management: Do Your I-9s Pass the Test?

Employers, do you know your liability related to your I-9s? As required by federal law, each one of your employees (hired after November 2006) must have a properly completed I-9 in their file to establish he is authorized to work for your company.

More than ever, the government is inspecting U.S. employer’s records to determine if they are in compliance with our nation’s immigration laws.  Fiscal Year 2011 was a record year for worksite enforcement. Over 2,000 employers were audited by the U.S. Immigration and Customs Enforcement (“ICE” ).  These ICE audits, also known as “silent raids,” have been sweeping through the country as an enforcement strategy to review company I-9s and identify any undocumented workers.  Employers should be aware of the risks of being out of immigration compliance.

To target businesses, ICE conducts investigations of employers.  If an employer is investigated by ICE, the employer has 72 hours to turn over its I-9s and related employment documents to ICE.

By law, employers cannot “knowingly” hire or continue to employ individuals without employment authorization.  Knowledge can be either actual or constructive.  Constructive knowledge is what a reasonable person would know.  For example, an employer may be out of compliance if it:

• Fails to complete or improperly completes an I-9;
• Has information available that puts them on notice;
• Continues to employ an employee without looking into suspicious information; or
• Acts with reckless disregard.

The effect of these silent raids resulted in employers being required to terminate thousands of workers nationwide, as well paying huge monetary fines (and possible criminal liability).  Companies like ABM Industries Inc. and American Apparel Inc., were hit with a total of nearly $76 million in fines.  Chipotle, one of the largest growing fast food burrito chains in the United States, has also been hit with a flurry of investigatory measures.  With 2011 marking the largest rise of immigration compliance enforcement efforts, we should only expect more in 2012.

Call your risk management team at Cravens Warren if you need further information about how to ensure your I-9s are in compliance with the law.

Daniel N. Ramirez is a Partner at Monty & Ramirez, LLP, and is Board Certified in Labor and Employment by the Texas Board of Legal Specialization.  His legal practice focuses on employment, labor and immigration compliance matters, where he represents private and public employers in state and federal litigation, arbitration and before government agencies.  He also assists clients by advising them on employment law compliance, human resources issues, employment-related agreements, and policies to circumvent employee claims.  Additionally, he represents employers during ICE raids and investigations, assists clients with Form I-9 compliance initiatives, and advises clients about hte changes in the law regarding federal and state identification documentation. 
www.montyramirezlaw.com