Avoid Criminal Penalties

In order to comply with basic federal laws regarding hiring and employment, employers must verify the identity and employment authorization of each person they hire after November 6, 1986. Employees must fully complete Section 1 of Form I-9 at the time of hire. Employers must review the employee’s document(s) and fully complete Section 2 of Form I-9 within three business days of their first day of work. Employers must retain completed Forms I-9 for all employees for three years after the hire date, or one year after the date employment is terminated, whichever is later.

Employers are well advised to conduct internal audits to ensure that their hiring and document retention practices are compliant with the federal rules. On July 1, 2009, US Immigration and Customs Enforcement (ICE) announced that, in order to deter illegal employment, it would be inspecting 652 businesses nationwide to ensure compliance with employment eligibility verification laws. In mid-August, the new chief of ICE, John Morton, stated that the agency would be intensifying its crackdown on companies who employ illegal workers. He indicated that ICE will notify many more employers in the coming months of impending audits.

Now is the time for employers to evaluate their hiring practices,

As part of an ICE audit, government agents review I-9 forms, W-2 reports and payroll records. They try to determine whether an employer has properly checked new employees’ identities and work authorizations. The government also evaluates whether employees used counterfeit documents to prove their employment eligibility.

If the government concludes that a company is employing illegal workers, hefty fines for each such employee may be imposed. And if the government finds that the employer knowingly employs illegal workers, criminal investigations (and penalties) may follow. The Obama administration has announced that its audits have already resulted in guilty pleas for felony violations by employers
ICE audits are not limited to any particular geographic area or industry. Employer size does not affect the likelihood of such an audit occurring. Now is the time for employers to evaluate their hiring practices, and to get themselves in compliance with these laws, before the government does.

ellen r. storch, esq.

Ellemn R. Storch is an employment attorney with the firm Kaufman Dolowich Voluck & Gonzo LLP. Contact her at estorch@gdvglaw.com