Wednesday, March 13, 2013

Now We Have A New I-9 Form, When Is An Employer Liable For Hiring An Illegal Worker?

When it comes to hiring and managing the workforce, nothing is easy.  Last week the government released the new I-9 form.  As employers read the instructions and start using the form, they will undoubtedly ask again whether they can be held liable for hiring persons not authorized to work in the United States. 

With the enactment of the Immigration Reform and Control Act in 1986, it became illegal for employers to hire a person not authorized to work in the United States. An I-9 form was created to document the eligibility of every worker.  

Criminal penalties of $100 to $1,100 per day can be imposed on an employer that does not accurately complete an I-9 Form on behalf of each employee within the first three days of employment.  The person who signs an I-9 form containing false statements may be guilty of perjury.  But this is not all. 

Knowingly using a person not authorized to work in the U.S. may be subject to a fine of $10,000, and a jail sentence.  You should note that the statute uses the phrase knowingly use as opposed to knowingly hire.  Walmart discovered this when the government sued the company claiming that the company knew its contractors were using persons not eligible to work in the U.S.  An employer who relishes hiring ineligible workers can be found guilty of harboring and imprisoned.  This is knowingly employing 10 or more individuals not authorized to work in a 12-month period.  

Employers may receive a no-match letter from the Social Security Administration.  A no-match letter means that the name and the social security number of the worker do not match. 

Receipt of a no-match letter does not mean the person is not eligible to work in the U.S.  Theoretically, an error could have been made somewhere in the process that caused the problem.  Or, perhaps someone else stole the employee’s social security number to obtain employment elsewhere and is actively using it.  In my experience, the most common reason for the no-match letter is because the employee provided false documentation during the hiring process. 

An employer should take careful action once a no-match letter is received.  Failing to take action could result in the government claiming that the employer knowingly used a person not eligible to work in the U.S.  We have suggested to clients that they give the employee an opportunity to correct any error that may have caused the issuance of the no-match letter. 

It is not uncommon, however, for an employee to admit that the social security number provided initially was not his/her number.  Sometimes the employee admits (s)he is not eligible to work in the U.S.  Sometimes they give the client a new number.  If this happens, the employer must complete a new I-9 form with the new information.  If it appears valid, then the employer may not have knowingly used an ineligible worker.  However, an employer in this situation might also consider use of the E-Verify system.  This allows the employer to quickly determine whether the employee’s name matches his/her social security number.  Sierra HR Partners can perform an E-Verify search for you. 

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