Who Do You Know?

Catharine Ellingsen

The Immigration Reform and Control Act of 1986 (IRCA) requires that employers verify the identity and work authorization of all newly-hired employees. Employers have to complete Form I-9 and review original documentation to prove each employee's identity and legal authorization to accept employment in the United States.

Despite I-9's simple, one-page appearance, it can be a source of confusion and panic for many employers, as even simple errors can result in civil fines of up to $1,100 per form.

Employers must use the proper version of the form and comply with strict rules about timing. For instance, the employee must complete Section 1 of the form by the end of the first day of employment. The employer, meanwhile, must review the required documentation and complete Section 2 by the end of the employee's third day of work. Employers also must obtain acceptable proof of identity and work authorization (without specifying which documents the employees should present or asking for more or different documentation than is required by law), update I-9s for employees whose work authorization expires, and retain I-9s on file for all current employees (and certain terminated employees) in a secure location.

The Broad Meaning of “Knowing”

IRCA prohibits employers from knowingly hiring or continuing to employ unauthorized workers. Under IRCA, proper completion of Form I-9 shows “good faith” compliance with the law and can be used as a defense by an employer charged with knowingly employing an unauthorized worker. Employers, however, should take steps to ensure that they do not face such charges in the first place, as the charge alone can harm a company's reputation.

IRCA regulations define “knowing” more broadly than many employers expect. To be liable for knowingly hiring an unauthorized worker does not require that the employer actually be aware that the individual being hired is not legally authorized to work in the United States. “Knowing” includes “constructive knowledge.” This means that, if an employer has sufficient information to suspect that an employee is working illegally and the employer does not take action, that employer may be deemed to be “knowingly” employing undocumented workers. Such a finding can result in massive fines (up to $16,000 per unauthorized worker) and, if a pattern or practice of employing unauthorized workers is found, may also result in criminal sanctions, up to and including imprisonment.

Best Practices to Ensure an Authorized Workforce

To avoid hiring unauthorized workers (and potentially becoming tomorrow's headline), there are numerous steps a company can take:

Conducting annual self-audits of I-9 forms may be one of the best ways for a company to confirm its records are in order.

A Note About E-Verify

As currently structured, E-Verify does not inform employers when it detects duplicate active records in its database. The same SSN could be in use at another employer, and potentially multiple employers, across the country, and the E-Verify system may indicate that the employee is authorized to work without informing the employer of the discrepancy. (The government may, in fact, use this information initiate an investigation against an employer even if it never informed the employer of the multiple uses of the SSN.)

Additionally, E-Verify does not detect or protect employers against all instances of identity theft. Employers have no foolproof way to determine if a new hire is presenting valid identification documents or if those documents contain valid information that belongs to someone else. Finally, employers who register for E-Verify give up certain notice rights, allowing the government to inspect their I-9 and other records without the 72-hour notice that other employers enjoy. While E-Verify is a useful tool, employers who are not required by law to use the system should take time to fully understand its requirements before registering.

The focus on immigration reform highlights its importance to the American public and government. Until the current system is reformed, employers in all industries must recognize that compliance with the current IRCA regulations is mandatory, not voluntary.

Catharine Ellingsen is vice president and deputy general counsel for Republic Services in Phoenix.

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