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Workers' Status A Hot Topic

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By KLINT LOWRY, The Suncoast News

Published: February 6, 2008

NEW PORT RICHEY - Illegal immigration and undocumented workers are among today's hot-button topics, and there's no telling when the government might decide to crack down on employers.

Business owners, whether they see illegal workers as a big problem or not, don't want it becoming their problem.

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

Diaz addressed the question of "Is Your Employee Legal?" during the recent Business Development Week 2008, sponsored by Pasco County government and the West Pasco Chamber of Commerce.

For all those who enter this country illegally, many arrive and obtain legal working status, she noted.

"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."

Good Time For Checkup

The Immigration, Reform and Control Act has been law since 1986. It requires employers to verify the identities and legal rights to work of the people they hire. This law spawned the I-9 form.

Penalties for inadequate record-keeping range from $100 to $1,000 per violation. Penalties for knowingly employing an illegal worker range from $250 to $10,000 per violation.

"The penalty isn't against the employee; the penalty is against the employer," Diaz said. She said now is a good time for companies to review how they collect and maintain this information.

Getting Records In Order

Diaz offered these rules and advice:

•New employees must fill out an I-9 form and provide documentation, whether they're recent immigrants or their ancestors came over on the Mayflower. An I-9 isn't necessary for someone hired as an independent contractor. Temporary workers are the responsibility of their agencies and not of the businesses where they are placed.

•Don't have employees fill out an I-9 until their first day on the job. Businesses that have people fill out the forms beforehand leave themselves open to a discrimination claim if the employee never starts work.

•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 documentation, the old phrase "accept no substitutes" applies. Employees must present original documents in person. Photocopies, faxed copies and 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 or the document is 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 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 such as investment income, royalties or scholarships.

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

Keep All I-9 Forms Together

There is no requirement to make copies of the papers employees provide. However, doing so is highly recommended so employers can show they did everything they were supposed to do to get the required documentation.

Making copies of forms must be done with every worker to avoid the appearance of discrimination.

Employers must keep those records until one year after a worker leaves the company. Keeping electronic backups is fine, 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 the documents sought.

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