Bulletin: I-9 Compliance – Are You Prepared for the Holiday Hiring Season?
Holiday Hiring Season Looms—Are Your I-9 Processes Ready?
With the holiday hiring season here, employers should ensure readiness by re-examining their I-9 processes and accompanying documentation. Higher volumes can lead to careless mistakes even with seasoned preparers, so a good starting point is an evaluation or creation of a strong Standard Operating Procedure (SOP) document. This document identifies details of an employer’s I-9 process, and delineates oversight responsibilities, completion protocol, corporate structure circumstances, training offered, and other information pertinent to a particular employer. An SOP is one of the first pieces of information requested by Immigration and Customs Enforcement (ICE), as part of an audit. A strong SOP which is implemented well helps employees know their piece of the I-9 puzzle better and can help establish a culture of compliance which in turn could lead to mitigation of fines or leniency on the part of auditors in certain situations.
Another piece of the process employers should be acutely aware of at present is knowing what and what not to do with regard to requesting documentation for Section 2 of the Form I-9. The Office of Special Counsel (OSC) has been concentrating on over-documentation of late, and employers need to be aware of what can constitute such a practice in order to avoid engaging in it.
In Fiscal year 2014, the OSC levied almost $900,000 in civil penalties and awarded over $540,000 in back pay to employees who had been discriminated against. Over-documentation is an example of a discriminatory process—one that many employers may not even be aware is considered to be discriminatory. Generally, over-documentation occurs when an employee volunteers more than the necessary number of documents and the employer records them all on the I-9, OR when an employee provides acceptable List A, B, or C documentation, but the employer asks for an alternate document or documents. Employers should always remember they must not accept more than the required amount of Section 2 documentation, nor may they request specific types of documents. The employer must accept what the employee presents as long as the document is acceptable for the process and reasonably relates to the individual presenting it.
The anti-discrimination provision of the Immigration and Nationality Act, 8 U.S.C. Sec. 1324b requires all employees to treat all authorized workers equally during the I-9 process, regardless of national origin or citizenship status. The same federal law specifically bans document abuse. Recent administrative decisions, such as the September 11, 2011, Office of the Chief Administrative Hearing Officer (OCAHO) case– US v Life Generations Healthcare–continue to illustrate the stress placed on over-documentation by the OSC.
Over-documentation is just one small piece of an increasingly complicated I-9 puzzle. Employers should ensure they are frequently updating their processes to ensure compliance with the latest laws, regulations and enforcement positions taken by the applicable government agencies. This time of year, strong processes and oversight become paramount in order to avoid a landslide of holiday “gifts” in the form of I-9 violations.
Employers should continuously monitor the compliance landscape to keep abreast of regulations and enforcement positions that could affect their I-9 processes. Equifax Workforce Solutions can help simplify your best practices approach through an easily-managed technology platform that helps ensure compliance across the jurisdictions in which you do business. To receive more information on how Equifax Workforce Solutions can assist your company in creating a strong culture of compliance with your I-9 processes, please contact us.